Brown v. Spivey

• Decision Date: 31 July 1874
• Parties: William R. Brown, plaintiff in error. v. James A. Spivey,trustee, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 155

William R. Brown, plaintiff in error. v. James A. Spivey, trustee, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Husband and wife. Registry. Marriage settlement. Fraudulent conveyance. Debtor and creditor. Before Judge Hill. Houston Superior Court. May Term, 1874.

For the facts of this case, see the decision. Poe, Hall & Lofton, for plaintiff in error.

S. D. KiLLEN, for defendant.

Warner, Chief Justice.

This was a claim case, on the trial of which, the following facts are disclosed in the record:

In 1859, Henry Brown, the father and testator of plaintiff, sold to James A. Spivey, half of lot of land number fifty-five, fifteenth district, Macon county, for $900 00. Defendant paidplaintiff, as executor of Henry Brown, all of this amount *except the sum of $258 37, for which sum he gave plaintiff his note, 26th December, 1867, due at one day. On this note, plaintiff instituted suit on the 31st of December, 1869, returnable to the next term of Houston superior court, and judgment was rendered in this suit on the 12th day of December, 1870, and execution issued thereon 23d December, 1870; this execution was levied on the land in question, 3d October, 1871. On the 2d of October, 1868, Spivey, then a resident of Macon county, exchanged with Dennard, one thousand six hundred and fifty acres of land in Macon county for two places in Houston countv, the one levied on, and another called Oaktucky; the place levied on containing between five and six hundred acres of land was rated in the exchange at $10,000 00, and for that consideration, Dennard, by Spivey\'s direction, conveyed the same to Spivey to hold in trust for his wife and children. This deed bore date on the day and year aforesaid, and was attested by Samuel D. Killen, and T. M. Killen, deputy clerk of the superior court of Houston county. There was nothing else that purported to be an official attestation, and there was no proof of the execution of the deed; thus attested it was recorded by the clerk of the superior court of Houston county on 29th December, 1869; it was never recorded at all in Macon county, the residence of Spivey (the husband,) at the time of the settlements. It was shown at the time of this transaction, that Spivey was indebted between $4,000 00 and $6,000 00; that he retained property over and above the voluntary settlement at the estimate he and others placed upon it—worth between $12,000 00 and $15,000 00—that most of this property had been disposed of by him; that he resided with his wife and children on the place embraced in the settlement, and controlled it, and had done so since his removal to the place. He also testified when on the stand, that in making this voluntary settlement upon his family, he had no intention or design of delaying, hindering or defrauding his creditors, to which testimony plaintiffs objected, uponthe ground that this was an inference which the jury, and not the witness, *might draw from the facts and circumstances given in the evidence, which objection was overruled and plaintiff excepted.

Plaintiff also requested the court, in writing, to charge the following, which the court refused, viz.: "That if the jury believed, from the testimony, that Spivey procured the deedfrom Dennard to him as trustee for his wife and children, and paid him the consideration therefor, then this was a voluntary settlement by Spivey on his wife and children, and the deed should have been recorded in the county of Spivey\'s residence within three months from the time it was made, and upon failure to make such record of the said deed within the time prescribed and as above set forth, the same would not be of any force or effect against a creditor who, bona fide and without notice, may have become such before the actual recording thereof.

"That the failure to record such deed within the time prescribed by law was, in legal contemplation, a concealment of the same and a badge of fraud, especially if it appears from the evidence that the defendant was in possession of and controlling the land levied upon. That any violation of the policy which the law prescribes, and which might work injury to the rights of a third person, was legal, though not actual, fraud.

"That if defendant had applied to the courts to set apart a homestead and exemption for his family, and this land had been so set apart, it would not have prevailed against this debt, if they believed that the debt was in existence prior to the passage of the...