Cohen v. Parish

• Decision Date: 03 March 1897
• Citation: 100 Ga. 335,28 S.E. 122
• Parties: COHEN et al. v. PARISH.
• Court: Georgia Supreme Court

28 S.E. 122

100 Ga. 335

COHEN et al.

v.PARISH.

Supreme Court of Georgia.

March 3, 1897.

Fraudulent Conveyances —Insolvency—Confidential Relations—Consideration — Evidence.

1. A debtor whose entire property consisted of a single parcel of realty and cash in hand was not, within the meaning of section 1952, par. 3, of the Code, insolvent, if the market value of the land added to the amount of his cash made, in the aggregate, a sum sufficient to pay in full all his debts.

2. Where a debtor in this condition exchanged the land he owned for other land of less value, received the difference in money, placed the same where it could not be reached by legal process, and caused a conveyance of the property for which he had exchanged to be made to himself, as trustee for a minor daughter, such conveyance, if as between the father and daughter unsupported by any valuable consideration, was as to creditors prima facie fraudulent; and the daughter carried the burden of proving that it was valid, by showing, not only the solvency of the father, but also that the deed was bona fide, and not made with the intention to hinder, delay, or defraud creditors.

3. If, on a trial involving the validity of such a deed, it appeared that the money received by the father was kept inaccessible to his creditors, this would be a strong circumstance evidencing a fraudulent intention in procuring the deed to be executed as stated.

4. The evidence in the present case did not warrant a finding that the father caused the deed to be made for the purpose of settling with the daughter an alleged claim on her part against him, arising from his misappropriation of the proceeds of a homestead estate of which she had been a beneficiary. Therefore the question as to how the rights of the several parties to the record would be affected by a deed founded upon a consideration of the character just indicated is not now for decision.

5. As some of the instructions given by the court were not in harmony with the rules above laid down, the ends of justice require that there should be a new trial.

(Syllabus by the Court.)

Error from superior court, Pulton county; J. H. Lumpkin, Judge.

Action by Minnie L. Parish, by next friend, against L. Cohen and others, to cancel a deed. There was a judgment for plaintiff, and defendants bring error. Reversed.

Simmons & Corrigan, for plaintiffs in error.

Van Epps, Ladson & Leftwich, for defendant in error.

COBB, J. The material facts are as follows: John T. Parish owned a city lot, which he exchanged for another lot owned by Samuel T. Bryan, receiving a difference In money of $400. On April 30, 1886, Bryan, by direction of Parish, conveyed the lot to him, as trustee for his minor daughter, Minnie Laura Parish. In this deed the trustee was given power to sell and convey the property without an order of court. At the time of this transaction, Parish was indebted to L. Cohen & Co., and the lot conveyed was all the visible property he owned; but he had in hand cash sufficient, when added to the value of the lot, to pay all of his debts. On September 13, 1886, the sheriff levied certain justice court fl. fas. in favor of L. Cohen & Co. against Parish individually on the lot; and a sale was had, at which Cohen bid in the property for the sum of $100, and the sheriff made him a deed to the same. Parish also executed to Cohen a deed to the property, which he held as trustee for his daughter, in payment of the debt due Cohen. Cohen went into possession of the property, and retained possession until March, 1893, receiving the rents and profits, at which time he executed a bond for titles to one Speer, contracting to sell him the property. Since that time Speer has been in possession, enjoying the rents and profits. Minnie Parish, in her petition by her next friend, alleged that the deed from Parish to Cohen was void; that Cohen, knowing that the title to the property was in Parish, as trustee for petitioner, induced him to make the deed to the same. She further alleged that Speer knew that Cohen had no legal title to the property. The prayers of the petition were that the deed from the sheriff to Cohen, the deed from Parish to Cohen, and the bond for titles from Cohen to Speer, be all canceled, and that she have judgment against Cohen for the rents and profits from the time of the execution of the alleged deed by Parish, or that, in the event Speer be considered an innocent purchaser, then for judgment against Cohen for the value of the property, with interest. The defendant Cohen answered that he was a purchaser in good faith; that Parish was insolvent at the time the deed as trustee...