Cotton States Fertilizer Co v. Childs, No. 9856.

CourtSupreme Court of Georgia
Writing for the CourtBELL
PartiesCOTTON STATES FERTILIZER CO. v. CHILDS et al.
Decision Date24 May 1934
Docket NumberNo. 9856.
179 Ga. 23

174 S.E. 708

COTTON STATES FERTILIZER CO.
v.
CHILDS et al.

No. 9856.

Supreme Court of Georgia.

May 24, 1934


[174 S.E. 708]

.

Rehearing Denied June 16, 1934.

Syllabus by the Court.

This being a suit to recover a judgment on a note against a husband and to cancel a deed from the husband to the wife as having been made to defraud the plaintiff and other creditors, where the defendants relied solely upon the testimony of the husband, and the jury could have found that the failure of the wife to testify was not sufficiently explained, the trial judge erred, in view of these and other circumstances shown.by the record, in refusing a timely written request presented by the plaintiff to instruct the jury in the language of the Civil Code of 1910, § 5749, that "where a party has evidence in his power and within his reach by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted."

Error from Superior Court, Macon County; W. M. Harper, Judge.

Suit by the Cotton States Fertilizer Company against M. H. Childs and wife. Judgment for defendants, and plaintiff brings error.

Reversed.

Gilbert C. Robinson, of Montezuma, and J. S. Averill, Jr., of Columbia, S. C, for plaintiff in error.

Felton & Felton and Jule W. Felton, all of Montezuma, for defendants in error.

BELL, Justice.

Cotton States Fertilizer Company brought a suit against M. H. Childs and Mrs. Childs, husband and wife, to recover a judgment against the husband on a note and to cancel a deed from the husband to the wife as being a mere voluntary conveyance which rendered the husband insolvent, or, if based upon a valuable consideration, as having been made with intent to hinder, delay, or defraud the plaintiff and other creditors, the wife being aware of such intention or having reasonable ground to suspect the same. The defendants in their answer admitted that the husband was liable on the note, and that the deed had been executed as alleged, but denied the other allegations. They contended upon the trial that the deed was executed in payment of a debt due by the husband to the wife, and that, although the husband was thereby rendered insolvent, the transaction was attended with the utmost good faith, and was lawful under the rule that a debtor may prefer one creditor over another. The jury found for the defendants, and the plaintiff excepted to the overruling of its motion for a new trial. The motion was based on the general grounds and on several special grounds, in one of which error was assigned upon the refusal of a timely written request by the plaintiff to instruct the jury in the language of the Civil Code of 1910, § 5749, that "where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted." It is our opinion that the court erred in refusing to instruct the jury as requested; and in the view which we take of the case it is unnecessary to pass upon other questions raised. Before discussing the law relating to the question to be decided, some additional facts should be stated.

Mrs. Childs, though a party defendant, did not attend the trial, and her depositions were not taken, the only evidence introduced by the defendants being the testimony of Mr. Childs, the husband. He testified that his wife was "undergoing the change of life, " and was of a "nervous disposition, " and that although she was "up and about" he was "afraid to bring her to court." He further testified: The deed in question was made in payment of a loan in sum of $1,800 which he obtained from his wife in June, 1917. He did not give his wife any note or other obligation in writing, but promised to pay interest at the rate of 8 per cent, per annum. The deed was

[174 S.E. 709]

made "for a consideration of $3,500, which represents the principal of $1,800 and interest." He did not intend to hinder or delay his creditors, but merely wanted to pay his wife what he owed her. He has no written evidence showing the receipt and disbursement of the $1,800 loaned by his wife, except one check in the sum of $183.50, with which he paid for repairs upon his house. The money which he obtained from his wife was inherited by her from an aunt, and was received by her and delivered to the witness in currency. The witness purchased 500 acres of land in 1907, for which he paid $1,815, and purchased 671/2 acres in 1925, for which he paid $4,000. All of these lands were conveyed by the deed which is now in controversy. At the time of making this deed, in October, 1931, the witness owed the debt sued on in this case, and another debt which he mentioned as amounting originally to $1,000, but on which some thing had been paid. He did not "recall" other debts that he owed at that time, but stated that "he owed considerable money." The making of this deed and the transferring of certain personal property with it left him without owning any property of any kind whatsoever. All of the personalty on the farm, including certain cattle, he gave to his wife at the time he made the deed to her. He turned everything over to her in payment of what he owed her. He "never made a delivery of the lands or any part of the property" to his wife, but kept all of it and managed it for her. The tract of 67% acres was called the Oates place. Before purchasing this place for $4,000 in 1925, the witness did not offer to repay his wife what he owed her, and he did not suggest to her that the Oates place be put in her name at that time. Other testimony of this witness was as follows: "I have made considerable money during the years since I made this loan from my wife, and up to two or three years ago I could have paid back this loan several times; but I never at any time offered to repay the same, and my wife has never demanded that I pay her. She did not demand that I pay her at any time before I made her a deed, and did not ask me to make a deed to her conveying this property on October 9, 1931. I have given my wife money during all of the years since I made the loan, but I do not recall any single amount, nor could I estimate how much I have given her. Nothing was said about this money being applied on what I owed her. I have no written evidence of where this $1,800 my wife loaned me came from, and no written evidence of its disbursement except the check as pre viously testified. Out of all checks produced under your notice, I cannot tell whether paid out of this exact money. I did not give my wife a note or any...

To continue reading

Request your trial
39 practice notes
  • Maloy v. Dixon, No. 47310
    • United States
    • United States Court of Appeals (Georgia)
    • September 6, 1972
    ...394, 9 S.E.2d 666; Ramirez v. Mansour, 104 Ga.App. 651(1), 122 S.E.2d 594. For an exception, see Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, and compare Western & A.R. Co. v. Morrison, 102 Ga. 319(2), 29 S.E. (b) But if this were not the case it has long been the rule ......
  • Worth v. Worth, 1881
    • United States
    • United States State Supreme Court of Wyoming
    • October 1, 1935
    ...102 Vt. 147, 146 A. 812; that failure to produce testimony creates an unfavorable presumption, Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708. See [49 P.2d 655] also New York Life Ins. Co. v. Bradshaw, supra. In a number of other cases, an instruction on presumption has be......
  • Price v. Whitley Const. Co., No. 35390
    • United States
    • United States Court of Appeals (Georgia)
    • November 26, 1954
    ...so produce may give rise to the suggestion or presumption of evasion or concealment." See also Cotton States Fertilizer Company v. Childs, 179 Ga. 23, 174 S.E. In Lasseter v. Green, 202 Ga. 148(2), 42 S.E.2d 480, the Supreme Court said: 'There is no merit in the special ground of the motion......
  • Phillips v. Harmon, Nos. S14G1868
    • United States
    • Supreme Court of Georgia
    • June 29, 2015
    ...be exercised in its application,” and that “[e]ach case must stand upon its own particular facts.” Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 31, 174 S.E. 708 (1934). And, the Court of Appeals has explained that in considering the giving of such an instruction, the trial court shou......
  • Request a trial to view additional results
39 cases
  • Maloy v. Dixon, No. 47310
    • United States
    • United States Court of Appeals (Georgia)
    • September 6, 1972
    ...394, 9 S.E.2d 666; Ramirez v. Mansour, 104 Ga.App. 651(1), 122 S.E.2d 594. For an exception, see Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, and compare Western & A.R. Co. v. Morrison, 102 Ga. 319(2), 29 S.E. (b) But if this were not the case it has long been the rule ......
  • Worth v. Worth, 1881
    • United States
    • United States State Supreme Court of Wyoming
    • October 1, 1935
    ...102 Vt. 147, 146 A. 812; that failure to produce testimony creates an unfavorable presumption, Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708. See [49 P.2d 655] also New York Life Ins. Co. v. Bradshaw, supra. In a number of other cases, an instruction on presumption has be......
  • Price v. Whitley Const. Co., No. 35390
    • United States
    • United States Court of Appeals (Georgia)
    • November 26, 1954
    ...so produce may give rise to the suggestion or presumption of evasion or concealment." See also Cotton States Fertilizer Company v. Childs, 179 Ga. 23, 174 S.E. In Lasseter v. Green, 202 Ga. 148(2), 42 S.E.2d 480, the Supreme Court said: 'There is no merit in the special ground of the motion......
  • Phillips v. Harmon, Nos. S14G1868
    • United States
    • Supreme Court of Georgia
    • June 29, 2015
    ...be exercised in its application,” and that “[e]ach case must stand upon its own particular facts.” Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 31, 174 S.E. 708 (1934). And, the Court of Appeals has explained that in considering the giving of such an instruction, the trial court shou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT