Davidson v. Ecrittenden

• Decision Date: 31 July 1875
• Citation: 55 Ga. 497
• Court: Georgia Supreme Court
• Parties: Nicol & Davidson, plaintiffs in error. v. Simeon E.Crittenden, defendant in error.

55 Ga. 497

Nicol & Davidson, plaintiffs in error. v. Simeon E.Crittenden, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

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Claim. Presumption. Sale. Debtor and creditor. Fraudulent conveyance. Charge of Court. Evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.

On the 2nd day of January, 1872, Nicol & Davidson sued out an attachment against H. I. Kimball for $18,000 00 on notes dated in 1870 and 1871, on the ground that said Kimball absconds. At 9¹/₂ o'clock a. m., January 3, 1872, said attachment was levied upon various items of property, real and personal, including the furniture, fixtures, etc., in the H. I. Kimball House, in Atlanta, Georgia. On the 26th day of October, 1872, judgment was rendered on the attachment against the property attached, for $14,900 20, principal, and $1,869 69, interest. S. E. Crittenden, soon after the levy, filed a claim.

During October term, 1874, said claim was tried and the property found not subject. Plaintiffs were unable to make amotion for a new trial during said term because the papers *became lost, or were mislaid, and for this reason, on motion of plaintiffs\' counsel, the judge passed an order permitting plaintiffs to file their motion trial at the next succeeding term.

On the first day of that term plaintiffs did file their motion for a new trial on the following, among other, grounds:

1st. Because the court failed to charge the jury the following legal proposition which plaintiffs' counsel, in their argument, insisted on as a legal rule, and read authority in support of— the court, on concluding the charge given, not asking or requesting counsel on either side if they had any further charge to request, to-wit: "Every man is presumed to intend the necessary consequences of his act, and if an act necessarily delays or defrauds creditors, then the law presumes that it is done with a fraudulent intent.

2d. Because the court, having charged as follows, to-wit: "It is said that Kimball, at one time, was owner of this property; that he purchased it, and afterwards sold it to the claimant, Crittenden, and that after that sale the attachment in this case was levied. Look to the testimony to ascertain whether when the attachment was levied Kimball was the owner of the property in dispute. If you find from the testimony that at one time he was the owner, then did he subsequently sell it to Crittenden, the claimant? Look to the testimony and see if there was a contract between Kimball and Crittenden by which Kimball sold his property to Crittenden. If that occurred, and the furniture or property of which Kimball was owner was sold to Crittenden, and the terms of the sale were that Crittenden was to take it and pay so much, and the sum agreed upon was indicated by notes to fall due at the times agreed upon, and the property was delivered into the possession of Crittenden, Kimball would cease to be owner and Crittenden would become owner"-—failed to go further and charge the jury the law applicable to that part of the evidence tending to show that the giving of the mortgage by Crittenden to secure the purchase money of the property in dispute, was a condition precedent tothe vesting of the title in Crittenden, counsel for plaintiffs, in their argument, having contended *that no sale to Crittenden would protect him against the creditors of Kimball until said mortgage was given, and not until Crittenden had paid for the property, counsel for claimant having contended that the giving of the notes and delivery of the property consummated the sale.

3d. Because the court failed and omitted to charge the jury the principle of law contended for by plaintiffs' counsel, that if Kimball sold the property in dispute to Crittenden, the claimant, in fraud of Kimball's creditors, and Crittenden had notice of such fraud before he paid for the property, or before the notes given for the purchase money had passed beyond Kimball's and Crittenden\'s control, then Crittenden would not be a bona fide purchaser, and the property would be subject to Kimball\'s creditors.

4th. Because the court failed and omitted to charge the jury, that if at the time of the levy Crittenden had not paid for the furniture, and the notes given by him had not passed into the hands of innocent holders, the property was subject to the levy.

5th. Because the court, in making the following charge, failed and omitted to incorporate the principal of law that grounds for reasonable suspicion of fraudulent intent, are equivalent to a notice of such fraudulent intent. The charge as given, is as follows, to-wit: "If the testimony discloses to you, after a careful examination of every fact and circumstance developed by the proof, that the trade was made, and that it was done on Kimball's part, with the intention of delaying or defrauding his creditors, and that intention was known to Crittenden at the time, then the trade would be void as against the creditors of Kimball, and plaintiffs would have the right to make the property subject to their debt. If, on the contrary, it was a transaction in good faith, and not for the purpose of delaying or defrauding his creditors, or if he had that intention and it was unknown to Crittenden, it would be binding as between them and good against creditors."

6th. Because the court erred in making the...