Dickson v. Citizens Bank & Trust Co.
| Decision Date | 14 May 1937 |
| Docket Number | 11772. |
| Citation | 191 S.E. 379,184 Ga. 398 |
| Parties | DICKSON et al. v. CITIZENS BANK & TRUST CO. |
| Court | Georgia Supreme Court |
Error from Superior Court, Troup County; L. B. Wyatt, Judge.
Action by the Citizens Bank & Trust Company against Alec Dickson and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
Syllabus by the Court.
1. While it is true that 'a debtor may prefer one creditor to another,' and may convey property for this purpose (Code, § 28-301), the right so to do 'is subject to the qualification that the conveyance must be made only for the purpose of paying or securing [the creditor so preferred] and not be tainted with any intentions to hinder, delay, or defraud others; such conveyance being judged by the intention with which it is made and accepted, and not by its consideration or effect.' Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 27, 174 S.E. 708. See, also Cowan v. Bank of Rockdale, 159 Ga. 123(4), 126, 125 S.E. 194.
2. If a deed is made with intent to hinder, delay, or defraud a creditor of the grantor, and the grantee has knowledge of this fact or has reasonable ground to suspect the same, the deed is void as to such creditor, even though it is based upon a valuable consideration. Conley v. Buck, 100 Ga. 187(2), 28 S.E. 97; Ernest v. Merritt, 107 Ga 61(2), 32 S.E. 898; McLendon v. Reynolds Grocery Co., 160 Ga. 763, 129 S.E. 65.
3. 'Possession retained by the vendor after an absolute sale of real property is prima facie evidence of fraud, which may be explained.' Stephens v. Southern Cotton Oil Co., 147 Ga. 410(2), 94 S.E. 245.
4. Transactions between near relatives are to be scanned with care when attacked by a creditor as fraudulent; and if there be other circumstances besides the relationship (cf. Cowart v. Epstein, 101 Ga. 1, 29 S.E. 270; Webb-Crawford Co. v. Bozeman, 178 Ga. 328, 173 S.E. 144) which if not satisfactorily explained may be regarded as badges of fraud, the issue as to fraud is a matter to be determined by the jury. McLendon v. Reynolds Grocery Co., supra; Hilburn v. Hightower, 178 Ga. 534(4), 173 S.E. 389.
5. Under the foregoing principles, the evidence in the present case was sufficient to support the verdict in favor of the plaintiff creditor, canceling the deed attacked as fraudulent.
6. Under the decision in De Vane v. De Vane, 149 Ga. 783, 102 S.E. 145, the court did not err in admitting the testimony of the vice president of the plaintiff bank as to transactions with the deceased grantor, over the sole objection that the bank was a party and the testimony 'seeks to go into transactions with a deceased person.' The objection did not raise the question considered by this court in Dawson National Bank v. Shields, 174 Ga. 388(2), 392, 163 S.E. 197.
7. The court charged the jury that 'if either one of these grantees in the deed, either one of these three children, was acting as the agent of the other two, then notice to that particular one who was acting for the other two would be notice to all three.' This charge was not erroneous, as contended, upon the ground that there was no evidence of such agency.
8. The overruling of a motion for a nonsuit cannot be reviewed by a motion for a new trial, but should be made the subject of direct exception. Dixie Manufacturing Co. v. Ricks, 153 Ga. 364(4), 112 S.E. 370; Willis v. Seiberling Rubber Co., 44 Ga.App. 468(8), 161 S.E. 789.
9. The court did not err in failing, without request, to instruct the jury that 'they might find a verdict against all the defendants or either one separately, without finding a verdict for the plaintiff against all' of them. Welborn v. State, 116 Ga. 522, 524, 42 S.E. 773; 3 C.J. 855, 857; 4 C.J.S., Appeal and Error, p. 626, § 307.
10. The court did not err in overruling the motion for new trial.
Corbitt & Sumner, of Nashville, and E. T. Moon, of La Grange, for plaintiffs in error.
Lovejoy & Mayer, of La Grange, and Morrow & Bruce, of West Point, for defendant in error.
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