Cleveland v. Chambliss

• Citation: 64 Ga. 353
• Parties: Cleveland et al. v. Chambliss, guardian.
• Decision Date: 30 September 1879
• Court: Georgia Supreme Court

64 Ga. 353

Cleveland et al. v. Chambliss, guardian.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged as presiding officer of the senate, organized as a court of impeachment, did not sit in this case.]

New trial. Practice in the Supreme Court. Equity. Administrators and executors. Judgments. Fraudulent conveyance. Charge of Court. Before Judge Grice. Crawford County. At Chambers. July 11, 1878.

In February, 1875, Thomas E. Chambliss, as guardian of the minors of Israel J. Chambliss, deceased, filed his bill against Wilde C. Cleveland as executor of Washington C. Cleveland, deceased, and as trustee for Orleana A. and Oliver C. Cleveland, making, in brief, this case: *In 1858 complainant loaned to Washington C. Cleveland, principal, and E. T. Jordan, security, about $5,-300.00, and to said Jordan, principal, and Cleveland, security, $2,000.00, taking their notes therefor. These notes were renewed in 1862. Suit was brought on that for |2, 000.00 in Crawford superior court against Jordan alone. Cleveland having died, complainant was enjoined by the executor of his estate on a bill filed in September, 1869, to marshal assets, from commencing suit against such estate. Judgment was obtained against Jordan for $2,609.00 principal and interest. Shortly thereafter he was declared a bankrupt, and in 1874 was discharged, over the continued opposition of complainant. The master appointed on the bill to marshal assets reported over $12,000.00 in favor of complainant, and gave him preference over other creditors, except a few of equal dignity. The assets in the executor's hands, with the exception of property which he has not seen proper to appropriate to the payment of the debts of the estate, will not exceed $3,500.00. This other property, of the value of $9,000.00, ought to be made subject to the debts due complainant and other creditors of equal dignity. It consists of about eight or nine hundred acres of land, eight mules, farming utensils, etc., all of which, on or about November 20, 1868, was conveyed by testator in consideration of natural love and affection, to Wilde C. Cleveland in trust for testator's minor daughter and son, the said Orleana A. and Oliver C. At the time of this conveyance testator, Washington C. Cleveland, was indebted to complainant and others an amount equal to, if not greater than, the property he then owned. Prays that the aforesaid trust deed be declared void, the property subjected to complainant's claims, etc.

On June 5, 1877, complainant filed an amendment to his bill, setting forth that the conveyance, in trust by testator for the use of his children, was as follows: One Johnson boughtfrom one Letton five hundred and fifty acres of land of the value of $5,.500.00. Johnson received a deed *and gave his notes for the purchase money with testator as security thereon. Johnson being unable to meet his notes, it was agreed between him and testator that the. latter should pay them off, whilst Johnson should convey the land to Wilde C. Cleveland in trust for Oliver C. This was done on November 20,

1868. Testator also gave to his said son, Oliver C, by his will, farming utensils, stock, etc., of the value of $1,300 00, all of which went into the hands of his said trustee. In February,

1869, testator conveyed to Wilde C. in trust for his daughter, Orleana A., in consideration of natural love and affection, three hundred and fifty acres of land of the value of $3,500.00, and by will gave to her stock, farming utensils, etc., of the value of $1,000.00, and money and notes to the amount of $1,535.00, all of which passed into the hands of her trustee. Orleana subsequently married Lamar, who succeeded Wilde C. in the trust, and who complainant prays may be made a party defendant.

Complainant further alleged that the report of the master appointed on the bill filed by the executor to marshal the assets had, since the filing of his original bill, been confirmed by the verdict of a jury and decree, to-wit: at the September term, 1876, of Crawford superior court.

He also alleged that the value of the property which the executor improperly failed and refused to appropriate to the payment of debts of the estate, to-wit: that voluntarily conveyed to his children by testator, was $13,900.00.

Wilde C, the executor and trustee, answered that the indebtedness of testator at the time of the voluntary conveyances, did not exceed $9,000.00 on his own account, and $5,000.00 as security for others, whilst he had property to the amount of over $30,000.00, enumerating the items of which it consisted.

Lamar, trustee, answered, putting the value of the land conveyed to his wife at $1,200.00, the indebtedness of testator at the time of the conveyance at $14,000.00, and his property at $50,000.00. Denies that complainant holds anyclaim of $12,000.00 against testator, and alleges that if *testator ever owed him anything it was a debt contractedprior to June 1, 1865, and not having been sued before January 1, 1870, it was barred. In reference to the claim against Jordan, as principal, and testator, as security, he says it was contracted prior to June 1, 1865, and was not sued before January 1, 1870, though Jordan was sued; that complainant released testator in his lifetime; that he has allowed Jordan to make way with property subject to the judgment, etc.

The evidence introduced upon the trial of the issues thus formed need not be reported except so far as to state that the record of the proceedings had on the bill to marshal assets filed by Wilde C. Cleveland, executor, shows that Mary Zeigler, as guardian ad litem for Octavia Zeigler, a defendant to such bill, answered the same and filed a cross bill against the executor and trustee under the voluntary conveyances from testator, attacking the same upon substantially the same grounds as are presented in the bill of complainant, and alleging further that the money of the said Octavia paid for the land conveyed by Johnson to Wilde C., as trustee, under direction of testator, seeking to follow the fund, etc. Lamar, trustee, who was a party defendant to the bill to marshal assets, was also made a party to this cross bill. Chambliss, guardian, the complainant, was not

The precise date of the filing of this cross-bill does not appear, but service was acknowledged by opposing counsel on March 24, 1875.

The master reported adversely to this claim, and his finding was confirmed by verdict and decree at the September term, 1876.

The jury found for defendants. On January 19, 1878, counsel for complainant served counsel for defendants with the following notice:

"To the defendants and their solicitors:

"Whereas the judge of the superior court of the Macon circuit, Honorable Barnard Hill, presiding at the hearing of said cause when said verdict was rendered, suddenly died during said September term, *1877, on the day next to the rendition of said verdict, whilst complainant was preparing throught his solicitors a motion for a new trial, and before the same was or could have been filed, and whereas the next March term of said superior court is and will be the first time when such a motion could be filed, the defendants are hereby notified that at said March term of the superior court of Crawford county, the complainant will make and file a motion for a new trial in said cause as an extraordinary case, and as authorized by law in such cases made and provided."

The grounds of the motion subsequently made at the time designated in the notice, were, in substance, as follows:

1. Because the verdict was contrary to law, evidence, and the principles of justice.

2. Because the court erred in refusing to charge the jury as follows:

(a.) "The law presumes that every man intends the necessary consequence of his act, and if the act necessarily delays, hinders, or defrauds his creditors, then the law presumes that it was done with a fraudulent intent.

(b.) "The law stamps a man's generosity...