Edge v. Calhoun Nat. Bank

• Decision Date: 13 June 1923
• Docket Number: 3573.
• Citation: 118 S.E. 359,155 Ga. 821
• Parties: EDGE v. CALHOUN NAT. BANK.
• Court: Georgia Supreme Court

118 S.E. 359

155 Ga. 821

EDGE v. CALHOUN NAT. BANK.

No. 3573.

Supreme Court of Georgia

June 13, 1923

Syllabus by the Court.

None of the instructions, which are set out in full in the first division of the opinion, are erroneous for any of the reasons assigned by the claimant. While an instruction, in a claim case, that transactions between father and children should be scanned with care, and that slight circumstances may be sufficient to carry conviction of fraud, is inaccurate without an instruction that badges of fraud must first be shown, and that it is for the jury to determine from the evidence whether such badges of fraud existed, such inaccuracy does not require the grant of a new trial under the facts of this case, where there is no exception to such charge on the ground that it is not a correct abstract principle of law.

Where the trial judge gave to the jury appropriate instructions upon every substantial issue in the case presented by the evidence, it was not incumbent upon him, in the absence of a timely written request, to instruct the jury upon some collateral issue or theory suggested by particular testimony relied upon by one of the parties to the cause.

Where the daughter of a juror married the son of one of the defendants in execution, and where the daughter of another defendant in execution was the claimant and asserted title to the property levied upon under such latter defendant, the juror was not related to the defendant in execution first referred to; and the trial judge did not err in overruling the claimant's objection to such juror upon the ground that the juror was disqualified by reason of such relation.

The verdict is supported by the evidence.

Additional Syllabus by Editorial Staff.

Objections that instructions presented case more favorably to plaintiff than the law authorized and more favorably to plaintiff than to claimant, were too vague, general, and indefinite, and raised only the question whether the instructions stated correct principles of law.

Error from Superior Court, Gordon County; M. C. Tarver, Judge.

Proceeding on the claim of Mary C. Edge to property levied on under execution in favor of the Calhoun National Bank. Judgment for plaintiff, and claimant brings error. Affirmed.

Wm. E Mann and W. Gordon Mann, both of Dalton, for plaintiff in error.

J. G B. Erwin, Jr., of Calhoun, for defendant in error.

HINES, J. (after stating the facts as above).

The claimant insists that the trial judge erred in overruling her motion for new trial for three reasons. One is that he erred in giving certain instructions to the jury. The second is that he failed to give to the jury certain principles of law applicable to the issues in the case. The third is that he erred in not holding a juror disqualified to try this case.

1. The claimant complains of these instructions to the jury, to wit:

(1) "Now, gentlemen, I give you in charge a portion of section 3224 of the Civil Code of this state: 'The following acts by debtor shall be fraudulent in law against creditors and others, and as to them null and void. Every conveyance of real and personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with intent to delay or defraud creditors, and such intention known to the party taking.' "

(2) "I charge you that, if you find that the property in question was transferred by J. S. Edge to the claimant, and that his intent was to hinder, delay, and defraud his creditors, and that the claimant either knew or had reasonable grounds for suspicion that such was his intent in transferring the property, the deeds by which the property was attempted to be transferred are void, and it would be your duty unler these facts to find a verdict in favor of a cancellation of the deeds and to find the property subject to the execution."

(3) "If you find, however, that at the time of the transfer it was not the intent of Edge to hinder, delay, or defraud his creditors, or that his intent was not known to the claimants, and that they had no reasonable ground for suspicion that such was his intent, then your verdict should be: 'We, the jury, find the property not subject, and find against the cancellation of the deed.' "

(4) "A bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion, shall be valid."

(5) "I charge you that fraud will not be presumed, but, being subtle in its nature, slight circumstances may be sufficient to carry conviction of its existence. I charge you further that transactions between father and children should be scanned with care, and slight circumstances may be sufficient to carry conviction of fraud."

The first four instructions contain correct abstract principles of law. About this there can be no very serious contention and no doubt. The first, second, third, and fourth instructions contain substantially plain provisions of the Code. Section 3224, par. 2. The first sentence of the fifth instruction is supported by a clear provision of our Code (section 4626), and by many decisions of this court. Rountree v. Lathrop, 69 Ga. 757; Comer v. Allen, 72 Ga. 1; Strickland v. Jones, 131 Ga. 409, 62 S.E. 322. While the second sentence in the fifth instruction may not have been entirely accurate, because the jury were told that transactions between father and children should be scanned with care, without an instruction that badges of fraud must first be shown, and that it was for them to determine from the evidence whether or not badges of fraud had been shown, which called for rebuttal or explanation ( Hicks v. Sharp, 89 Ga. 311 [3], 15 S.E. 314), and while we do not think this instruction is supported by the rulings in Woodruff v. Wilkinson, 73 Ga. 115 (3), no point is made in the record upon the abstract correctness of this instruction; and for this reason we shall deal only with the grounds of error alleged to have been committed by the court in giving this instruction to the jury. Besides, we do not think that this inaccuracy, under the facts of this case, requires the grant of a new trial.

The claimant contends that the first and second instructions are not applicable to the facts of the case. This position is untenable. Both are supported by the evidence. Claimant also contends that the first instruction presented the case more favorably to plaintiff than the law authorized, and more favorably to plaintiff than to c...