Conley v. Buck
| Decision Date | 22 February 1897 |
| Citation | 28 S.E. 97,100 Ga. 187 |
| Parties | CONLEY et al. v. BUCK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An equitable petition by a judgment creditor against the defendant in execution and others alleged, in substance, that they had all entered into a conspiracy to defeat the collection of the debt upon which the judgment was founded that the common object of all the conspirators was to "hide" and "cover up," in the names of the co-conspirators other than the defendant in execution property which really belonged to him; and that, in pursuance of this object, various deeds have been executed, purporting to convey specified parcels of realty to these co-conspirators, which in fact belonged to the judgment debtor (the particulars in each instance being set forth). The petition prayed for the cancellation of the various conveyances, which were, for the reasons stated, alleged to be fraudulent, and for a judgment subjecting all the property to the petitioner's execution. Held, that this petition was not demurrable as failing to set forth an equitable cause of action, nor as being multifarious, nor for want of sufficient fullness in stating wherein the alleged fraudulent acts of the several defendants consisted.
2. There was no error on the trial of such a case, while the court was submitting to the jury the question as to whether or not a given deed from the defendants in execution to his wife (she being one of the defendants to the petition) was made with intent to hinder, delay, or defraud the husband's creditors, in charging, in substance, that if the husband made the deed with such intent, and this was known to the wife, it was void as to the creditors "even though it may appear that she had paid a valuable consideration," nor in charging that if, in accepting such deed, she did so with the intention and purpose of delaying or defrauding such creditors, the deed would be void, "although it may, have been based upon a valuable consideration."
3. That numerous instructions given by the court to the jury may not have been precisely and in every respect adjusted to the facts in evidence is not cause for a new trial, when it appears that these instructions were in themselves correct propositions of law, and that they contained nothing which could have misled the jury, or in any way have tended to prevent their reaching a correct conclusion upon the real issues involved.
4. Where an equitable petition was brought for the purpose of enforcing the collection of a judgment not then dormant, the filing of such petition was of itself sufficient to prevent the running of the dormancy statute, as against such judgment, so long as the equitable action was pending.
5. Where a defendant in a bail-trover action gave the bond required by the statute in such cases, and one of the sureties on that bond took from the principal in the same an indemnifying mortgage, which was really for the benefit of this surety only, though it contained a general stipulation that he might, under certain circumstances, take possession of the mortgaged property "for the benefit and security of himself and co-sureties on said bond," the fact that this mortgagee afterwards prosecuted the mortgagor for an illegal sale of the mortgaged property, and thus recovered money he had been compelled to pays because of his liability on the bail bond, in no way affected the right of another surety thereon to collect from the principal money which this latter surety had paid because of his liability on such bond; he being no party to the mortgage, and having taken no part in the criminal prosecution.
6. Grounds of a motion for a new trial not certified cannot be considered. There was no material error, either of omission or commission, in stating the contentions of the respective parties, nor in the other charges complained of. The court did not err in admitting or in rejecting evidence, and there was sufficient evidence to warrant the verdict rendered, in so far as it found the property therein referred to subject to the plaintiff's execution, and also to warrant the finding as to the amounts due thereon; but, inasmuch as there was no prayer in the petition authorizing any finding as to such amounts, direction is given that the verdict and judgment be amended so as to strike therefrom all which relates to this particular matter.
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by A. E. Buck against John L. Conley and others. From a judgment for plaintiff, defendants bring error. Modified.
Albert & Hughes and John L. Conley, for plaintiffs in error.
Arnold & Arnold, for defendant in error.
1. The plaintiffs in error complain because the court below overruled their demurrer to the petition, as amended. That demurrer was: (1) No equity in the petition, plaintiff having an adequate and complete remedy at law; (2) multifariousness; (3) misjoinder of parties defendant; (4) because of insufficiency and indefiniteness in the allegations of fraud and collusion between the defendants named in the petition, in not setting out in what the fraud consisted nor setting out any facts showing in what the fraud consisted. While substantially this same demurrer was made to the petition as it stood before the last amendment thereto, and was overruled by the court, as this last amendment struck therefrom all allegations concerning the Plowboy Company, which included everything with reference to Mrs. Sarah H. Conley and Benjamin Conley, Jr., and the demurrer was then renewed to the petition as amended, and again overruled, in treating of this case, we think it is not necessary to consider it as it stood before this last amendment was allowed, but we take the case as it appeared after the allowance of this amendment. For if the plaintiff's petition, as finally amended, was good as against the demurrer, it can answer no practical purpose to now consider whether it could have withstood the demurrer in its previous shape. The object of the plaintiff's petition is to enable him to reaches the property of the principal defendant, John L. Conley, alleged to have been fraudulently transferred to the other defendants named in the petition, and to subject it to the execution held by the plaintiff against said Conley. In the language of Sutherland, J., in the case of Fellows v. Fellows, 4 Cow. 699 (), "The object is a legitimate one, and to the accomplishment of which a court of equity will readily lend its aid." It is undoubtedly true that where a suit is filed in equity concerning things of distinct natures, against several persons, it is demurrable. Marshall v. Means, 12 Ga. 61; Stephens v. Whitehead, 75 Ga. 294; Stuck v. Alloy Co., 96 Ga. 95, 22 S.E. 595; Story, Eq. Pl. § 291. But, according to the view we take of the case under consideration, this is not such a suit. All discovery was expressly waived in the plaintiff's petition, and we are therefore, for the purpose of passing upon the demurrer to the petition as amended, to take the allegations of the petition to be true, notwithstanding the denials in the pleas of the defendants. So taking them, the case presented is one where a judgment debtor and certain of his near relatives "combined and conspired to aid him in holding out his property from the plaintiff, and joined together to aid him in such purpose, and did so aid him" in various fraudulent transfers of different parcels of property, the same being all of the property owned by the said principal defendant, by separate deeds made by him to each of these co-defendants, respectively; "and all of the defendants entered into a general scheme to defraud the plaintiff and other creditors, *** and every fraudulent transfer described in the petition was in pursuance of such scheme, said debtor having [after such fraudulent transfers of his property] no visible effects, and being totally insolvent."
Was the court right in overruling the demurrer on the ground that there was no equity in the petition, as the plaintiff had a complete remedy at law? In De Lacy v. Hurst, 83 Ga 223, 9 S.E. 1052, the demurrer was on the ground that "no equitable cause of action was set out in the plaintiffs' petition, because they did not show that they had reduced their debt to judgment, and had execution issued thereon and said execution returned nulla bona." But in sustaining the judgment of the court below, which overruled this demurrer, this court held that "to a suit brought under the act of 1887, or put under it by amendment, a demurrer on the ground that complainants have a complete and adequate remedy at law is not sustainable." If such demurrer was not sustainable in that case, surely it is not sustainable in the present one, because here the petitioning creditor has a judgment lien, and there has been a return of nulla bona upon the execution issued thereon. The case of De Lacy v. Hurst was examined and approved in Regenstein v. Tyler, 84 Ga. 277, 10 S.E. 719. In Stillwell v. Grocery Co., 88 Ga. 144, 13 S.E. 963, while it was held that "the uniform procedure act of 1887 does not make extraordinary remedies applicable or available where they were not so before," the decision in De Lacy v. Hurst was expressly adhered to; and Chief Justice Bleckley, delivering the opinion of the court, said, "That case holds that, in one and the same suit, creditors may proceed for judgment on their debts, and to set aside fraudulent conveyances." And he said that the creditors in the case which he had under review were "recti in curia as to the ultimate purposes of their action; these purposes being to establish their claim against Peacock, Peterson & Co., and to set aside an alleged fraudulent conveyance made by them to their co-defendan...
To continue reading
Request your trial