Childers v. Ackerman Const. Co.

Decision Date15 February 1955
Docket NumberNo. 18804,18804
Citation211 Ga. 350,86 S.E.2d 227
PartiesCHILDERS, Executrix, v. ACKERMAN CONSTRUCTION COMPANY et al.
CourtGeorgia Supreme Court

Syllabus by the Court

1. A request to charge must be perfect in form, correct and accurate, and adjusted to the pleadings, the law and the evidence, and a request to charge is not perfect in form when, as here, it contains in one sentence two separate and distinct principles of law, one respecting the authority which must be obtained before corporate property can be legally conveyed, and the other as to conveyances which are void in law when made for the purpose of hindering, delaying, or defrauding creditors.

2. Under the facts of this case, the plaintiff was not injured by a charge on the provisions of Code § 28-201, subsection 2.

3. One who has purchased property from another may, as a witness in his own behalf, testify that he bought in good faith and with no intention to hinder, delay, or defraud his grantor's creditors. Such testimony amounts to the statement of a fact, and is not a mere conclusion of the witness.

4. For reasons stated in the corresponding division of the opinion, it was not error, over the objection interposed, to allow in evidence two canceled checks; and the erroneous admission of oral testimony from which no injury results does not require the reversal of a judgment refusing a new trial.

5. There is evidence to support the verdict in this case, and the court did not err in refusing a new trial on the general grounds of the motion.

Sams, Wotton & Sams, Hudson & Hudson, Augustine Sams, John H. Hudson, W. R. Hudson, Atlanta, for plaintiff in error.

J. Robin Harris, Decatur, for defendant in error.

CANDLER, Justice.

On October 26, 1949, a verdict was obtained and a judgment was rendered in the Superior Court of DeKalb County against Ackerman Construction Company and in favor of Mrs. Clara Childers, as executrix of Edward B. Holland's estate, for $7,000 principal, $1,096.02 as interest from August 1, 1947, future interest on the principal at 7% per annum, and for costs of suit. This litigation arose on September 4, 1951, when Mrs. Childers, as such executrix, filed a suit against Ackerman Construction Company, Oliver P. Ackerman, and Judson B. Ackerman to cancel two warranty deeds, one from Ackerman Construction Company to Oliver P. Ackerman, dated November 27, 1946, and conveying lot 23 in block A of Forrest Hills (Second Addition) Subdivision; and the other from the same grantor to Judson B. Ackerman, dated November 12, 1946, and conveying lot 22 of the same block and subdivision. Each deed recites a consideration of '$10.00 and other good and valuable considerations.' In addition to the facts already stated, the petition alleges that the defendant Ackerman Construction Company is insolvent; that the defendants Oliver P. Ackerman and Judson B. Ackerman were, when the deeds were executed, president and secretarytreasurer, respectively, of Ackerman Construction Company, and as such officers of the company executed the deeds to themselves without corporate authority; that the deeds, though reciting a consideration, were in fact voluntary conveyances or conveyances for a grossly inadequate consideration; that the amount due the plaintiff is for labor rendered and materials furnished by Edward B. Holland to the defendant company in making improvements on its realty, including those lots conveyed by the aforementioned deeds; that both of the deeds were made for the purpose of hindering, delaying, or defrauding creditors of the defendant company, including Edward B. Holland; and that the plaintiff has a legal right to follow the assets of the insolvent defendant company into the hands of the defendants Oliver P. and Judson B. Ackerman, who were, at the time they acquired them, officers and stockholders of the defendant company. No demurrer was interposed. By their answer, the defendants admitted the indebtedness of the defendant company to the plaintiff as alleged in the petition; that Oliver P. Ackerman and Judson B. Ackerman were president and secretary-treasurer, respectively, of Ackerman Construction Company when the deeds sought to be canceled were executed; that, as such officers, they signed the deeds to themselves as grantees; and that the defendant company was insolvent when this litigation was instituted; and they denied all other substantial allegations of the petition. The case resulted in a verdict for the defendants, and the plaintiff seasonably moved for a new trial on the usual general grounds and by amendment added four special grounds. Her motion as amended was denied, and she signs error on that judgment.

1. The first special ground of the motion complains of error in the failure of the trial judge, on timely request therefore, to give the following charge: 'Officers and agents of a corporation, as such, have no authority to deed property to themselves and sign a deed in the name of the corporation as officers can only act by authority and resolution of the stockholders in such cases, and the court charges you that a deed or dees made without corporate authority or to hinder, delay or to defraud creditors are void in law.' The refusal of this request was not error. A request to charge must be perfect in form, correct and accurate, and adjusted to the pleadings, the law and the evidence in the case, Norris v. State, 184 Ga. 397, 191 S.E. 375; Rogers v. Manning, 200 Ga. 844, 38 S.E.2d 724; and a request to charge is not perfect in form when, as here, it contains in one sentence two separate and distinct principles of law, one respecting the authority which must be obtained before corporate property can be legally conveyed, and the other as to conveyances which are void in law when made for the purpose of hindering, delaying, or defrauding creditors in the collection of their claims. See Brown v. State, 195 Ga. 430(1), 24 S.E.2d 312; Smith v. State, 202 Ga. 851(5), 862, 45 S.E.2d 267. In Brown's case, it was said: 'A request to charge that contains two principles, one relating to the law of justifiable homicide and the other to the law of voluntary manslaughter, and when these two principles are commingled and confused in the same sentence, it is not a proper request.'

2. In another special ground of the motion for new trial, it is alleged that the court erred in giving the following charge: 'The court instructs you further that mere inadequacy of consideration in a deed even if the grantor is insolvent at the time of its execution, that if there was no intention to delay or defraud the creditors or if the intention was unknown to the grantee or grantees or the grantee or grantees did not have grounds for reasonable suspicion, that the deed or deeds would not be void.' This ground is without merit. The evidence shows that the grantees purchased the lots in question with no intention to hinder, delay, or defraud the grantor's creditors; and, where one honestly and in good faith purchases property from another, the mere fact that the consideration paid for the property was inadequate will not authorize a creditor of the grantor, who afterwards obtains a judgment against the latter, to subject the property to the satisfaction of his judgment. Code § 28-201, subd. 2; Sharp v. Hicks, 94 Ga. 624(5), ...

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    ...the facts--all the facts--are to be considered, to arrive at the truth respecting his real motive.' See also Childers v. Ackerman Construction Co., 211 Ga. 350, 354, 86 S.E.2d 227, and citations. 'It is well settled that circumstantial evidence may sometimes outweigh positive testimony.' Mi......
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    ...Inc., 134 Ga. App. 924, 216 S.E.2d 715 (1975); Frazier v. Willis, 128 Ga.App. 762, 197 S.E.2d 831 (1973); Childers v. Ackerman Construction Co., 211 Ga. 350, 86 S.E.2d 227 (1955). Thus, the rule does not affect the letters and other documents written by persons now deceased. However, it doe......
  • Jones v. Otis Elevator Co.
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    • December 8, 1988
    ...we move on to the question of harm or prejudice because error without injury does not require reversal. Childers v. Ackerman Construction Company, 211 Ga. 350, 86 S.E.2d 227 (1955). The burden is on the appellants to show error affirmatively by the record and also to show injury resulting f......
  • Hogan v. City-County Hospital of LaGrange
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    ...alleging error to show affirmatively an error that injured him. Campbell v. Powell, 206 Ga. 768, 58 S.E.2d 829; Childers v. Ackerman Construction Co., 211 Ga. 350, 86 S.E.2d 227; Maloy v. Dixon, 127 Ga.App. 151, 156, 193 S.E.2d 19. This has not been shown here. No injury occurred; no legal ......
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