Gray v. Collins

CourtSupreme Court of Georgia
Writing for the CourtEVANS
Citation139 Ga. 776,78 S.E. 127
Decision Date18 April 1913
PartiesGRAY. v. COLLINS et al.

(139 Ga. 776)
78 S.E. 127

GRAY.
v.
COLLINS et al.

Supreme Court of Georgia.

April 18, 1913.


(Syllabus by the Court.)

1. Fraudulent Conveyances (§§ 278, 308*)— Cancellation of Instruments—Husband and Wife—Burden of Proof — Question for Jury— Sufficiency of Evidence.

The evidence examined, and held to have made issues that should have been submitted to a jury.

(a) Where a transaction between a husband and wife is attacked for fraud by the creditors of the husband, the onus is on the husband and wife to show that the transaction was fair.

[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 801, 802, 923-940; Dec. Dig. §§ 278, 308.*]

2. Pleading (§ 259*)—Answer—Amendment.

Matters which are defensive to the plaintiff's action may be averred in amendment to the answer, even though such matters may be insufficient to afford the affirmative equitable relief therein prayed.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 783-792; Dec. Dig. § 259.*]

3. Fraudulent Conveyances (§ 286*) — Admissibility of Evidence — Husband and Wife.

Where a wife executes to her husband a deed to her land under the belief that she is giving a security deed to another to procure money for her own benefit, and this deed is not recorded until after credit is extended to the husband, in the absence of evidence that the credit was extended on the husband's ostensible ownership of the land, it is competent for the wife to show that the deed to her husband was procured by imposition.

[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 822-825, 827-834, 863-806; Dec. Dig. § 286.*]

Error from Superior Court, Early County; W. C. Worrill, Judge.

Action by A. H. Gray, trustee, against E. S. Collins and others. Judgment for defendants, and plaintiff brings error. Reversed.

Rambo & Wright and C. L. Glessner, all of Blakely, for plaintiff in error.

Pope & Bennet, of Albany, and B. R. Collins and W. G. Park, both of Blakely, for defendants in error.

EVANS, P. J. The trustee in bankruptcy of the estate of E. S. Collins brought a petition against the bankrupt, his wife, Mrs. Emma T. Collins, and his son B. R. Collins, praying for the cancellation of certain deeds, and a decree that the title to the land therein described is in the bankrupt as against his creditors, whose debts were in existence at the time the conveyance from the bankrupt to his son was executed, to wit, October 14, 1908. On the trial it appeared that Mrs. Emma T. Collins was the owner of a tract of land which she conveyed on November 30, 1901, to her husband by warranty deed upon an alleged consideration of $500. This deed was not recorded until October 14, 1904. Intermediate between the execution and record of the deed E. S. Collins purchased certain cotton-gin machinery from the Liddell Company, giving his notes therefor, reciting that they were given for the purchase of the machinery, with reservation of title in the vendor until the full payment of the purchase price. Suit was brought on these notes on June 23, 1908, and judgment was obtained on October 9, 1909. On December 20, 1906, E. S. Collins conveyed the land by warranty deed to his wife, reciting a consideration of love and affection; and this deed was recorded on January 17, 1907. Mrs. Collins on December 26, 1906, conveyed the land, by warranty deed, reciting a consideration of love and affection, to her son B. R. Collins, who on the same day conveyed the land to his father, E. S. Collins, by deed reciting a consideration of love and affection. Both of these deeds were recorded on December 28, 1906. On October 14, 1908, E. S. Collins conveyed the land to B. R. Collins, who on the same day conveyed it to Emma T. Collins; both deeds reciting a consideration of love and affection, and

[78 S.E. 128]

both being recorded December 14, 1908. E. S. Collins was adjudged a bankrupt on his voluntary petition in December, 1909, and has not been discharged. The plaintiff is his duly appointed trustee.

Mrs. Emma T. Collins testified by interrogatories and subsequently by deposition. In her first testimony she said she went into possession of the land soon after she purchased it, that her husband looked after it for her, and that she became indebted to the Bank of Blakely through D. W. James. She had no recollection of having executed any papers to James, but signed a paper to the Bank of Blakely. She did not recall making a deed to her husband in 1901; her husband never paid or promised to pay to her any money for the land, nor did she expect him to pay for the land. She knew her husband bought the gin outfit from the Liddell Company, and at that time he owned no land, but he did own...

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13 practice notes
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...S.E. 751; Strickland v. Jones, 131 Ga. 409, 62 S.E. 322, 323, 324; Tucker v. Weathersbee, 98 S.C. 402, 406, 82 S.E. 638; Gray v. Collins, 139 Ga. 776, 78 S.E. 127, 128, 129; Younger v. Massey, 39 S.C. 115, 17 S.E. 711; Barrett & Co. v. Still, 102 S.C. 19, 29, 86 S.E. 204; Bank v. Dow-ling, ......
  • Cotton States Fertilizer Co v. Childs, No. 9856.
    • United States
    • Supreme Court of Georgia
    • May 24, 1934
    ...puts the burden upon the husband and wife. They must show that the transaction as a whole is free from fraud." See, also, Gray v. Collins, 139 Ga. 776, 78 S. E. 127; Davie v. Tanner, 150 Ga. 770 (2), 105 S. E. 355; Simmons v. Realty Investment Co., 160 Ga. 99 (2), 127 S. E. 279; McEain v. G......
  • State Banking Co v. Miller, No. 12137.
    • United States
    • Supreme Court of Georgia
    • March 8, 1938
    ...closely scanned and their bona fides clearly established. Booher v. Worrill, 57 Ga. 235; Smith v. Wellborn, 75 Ga. 799; Gray v. Collins, 139 Ga. 776, 780, 78 S.E. 127. 5. Possession retained by the vendor after an absolute sale of real property is prima facie evidence of fraud, which may be......
  • Strobel v. Gormley, No. 24024.
    • United States
    • United States Court of Appeals (Georgia)
    • January 11, 1935
    ...82 Ga. 427, 9 S. E. 172; Strickland v. Jones, 131 Ga. 409, 62 S. E. 322; Brand v. Bagwell, 133 Ga. 750, 66 S. E. 935; Gray v. Collins, 139 Ga. 776, 78 S. E. 127; Mitchell v. Mixon, 148 Ga. 596, 97 S. E. 528. This instruction was error, because the mere introduction of a conveyance from the ......
  • Request a trial to view additional results
13 cases
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...S.E. 751; Strickland v. Jones, 131 Ga. 409, 62 S.E. 322, 323, 324; Tucker v. Weathersbee, 98 S.C. 402, 406, 82 S.E. 638; Gray v. Collins, 139 Ga. 776, 78 S.E. 127, 128, 129; Younger v. Massey, 39 S.C. 115, 17 S.E. 711; Barrett & Co. v. Still, 102 S.C. 19, 29, 86 S.E. 204; Bank v. Dow-li......
  • Cotton States Fertilizer Co v. Childs, No. 9856.
    • United States
    • Supreme Court of Georgia
    • May 24, 1934
    ...the burden upon the husband and wife. They must show that the transaction as a whole is free from fraud." See, also, Gray v. Collins, 139 Ga. 776, 78 S. E. 127; Davie v. Tanner, 150 Ga. 770 (2), 105 S. E. 355; Simmons v. Realty Investment Co., 160 Ga. 99 (2), 127 S. E. 279; McEain v. G......
  • State Banking Co v. Miller, No. 12137.
    • United States
    • Supreme Court of Georgia
    • March 8, 1938
    ...closely scanned and their bona fides clearly established. Booher v. Worrill, 57 Ga. 235; Smith v. Wellborn, 75 Ga. 799; Gray v. Collins, 139 Ga. 776, 780, 78 S.E. 127. 5. Possession retained by the vendor after an absolute sale of real property is prima facie evidence of fraud, which may be......
  • Strobel v. Gormley, No. 24024.
    • United States
    • United States Court of Appeals (Georgia)
    • January 11, 1935
    ...82 Ga. 427, 9 S. E. 172; Strickland v. Jones, 131 Ga. 409, 62 S. E. 322; Brand v. Bagwell, 133 Ga. 750, 66 S. E. 935; Gray v. Collins, 139 Ga. 776, 78 S. E. 127; Mitchell v. Mixon, 148 Ga. 596, 97 S. E. 528. This instruction was error, because the mere introduction of a conveyance from the ......
  • Request a trial to view additional results

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