Greene v. Matthews

• Decision Date: 27 November 1923
• Docket Number: 14639.
• Citation: 120 S.E. 434,31 Ga.App. 265
• Parties: GREENE v. MATTHEWS.
• Court: Georgia Court of Appeals

120 S.E. 434

31 Ga.App. 265

GREENE v. MATTHEWS.

No. 14639.

Court of Appeals of Georgia, Second Division

November 27, 1923

Syllabus by the Court.

On the trial of a claim to property levied upon under a common-law execution, the plaintiff in fi. fa. may shift the burden of evidence to the claimant by showing that, subsequently to the rendition of the judgment, and at the time of the levy, the defendant was in possession of the property. Stephens v Southern Cotton Oil Co., 147 Ga. 410 (1), 94 S.E. 245; Civil Code 1910, § 5170; Lamkin v. Clary, 103 Ga 631 (1), 30 S.E. 596.

Where a judgment was rendered against a defendant in the county of his residence, but the fi. fa. issuing thereon was not entered upon the general execution docket thereof within 10 days from the date of the judgment, one who purchased from the defendant after the judgment but before the record of the fi. fa. on the execution docket, and who claims that the judgment is not a lien upon the property, by reason of such facts, must, in order to relieve the property from the lien of the judgment, carry the burden of proving that he acted in good faith and without notice in making the purchase. Eason v. Vandiver, 108 Ga. 109 (1), 33 S.E. 873; Ray v. Atlanta Trust & Banking Co., 147 Ga. 265 (6) 93 S.E. 418.

If a defendant sells his property with the purpose and intent to prevent his creditors from making their claims out of it, the sale will be void as to him, and, if at the time of the sale the purchaser has reasonable ground to suspect that such is his object, the sale will be void also as to the purchaser. Civil Code 1910, § 3224, subd. 2; Virginia-Carolina Chemical Co. v. Hollis, 23 Ga.App. 634 (3), 99 S.E. 154; Smith v. Wellborn, 75 Ga. 799.

The fact that a suit was pending or that a judgment had been rendered against the vendor at the time of the sale is a circumstance which the jury may have a right to consider on the trial of the issue as to whether the sale was made with the intent on the part of the vendor to defraud his creditors, as is also the fact of the insolvency or near insolvency of the vendor at the time of the sale. See Barber v. Terrell, 54 Ga. 146; Tillman v Fontaine, 98 Ga. 672 (5), 677, 27 S.E. 149; Virginia-Carolina Chemical Co. v. Hollis, 23 Ga.App. 634 (4), 99 S.E. 154; Hollis v. Virginia-Carolina Chemical Co., 27 Ga.App. 103 (1), 107 S.E. 554.

The possession of property, real or personal, remaining with the vendor after an absolute conveyance is evidence of fraud. Peck v. Land, 2 Ga. 1 (2), 46 Am.Dec. 368; Fleming v. Townsend, 6 Ga. 103 (1), 50 Am.Dec. 318; Smith v. McDonald, 25 Ga. 377; Willingham v. Smith, 48 Ga. 580 (3); Stephens v. Southern Cotton Oil Co., 147 Ga. 410 (2), 94 S.E. 245.

"On the trial of a claim case, where the issue is the bona fides of a transfer of property by the defendant in execution to the claimant, and there are circumstances which, if not satisfactorily explained, may be regarded as badges of fraud, it is for the jury, and not the judge, to pass upon such issues." Kelley v. Stovall, 138 Ga. 186, 75 S.E. 6; Stephens v. Southern Cotton Oil Co., supra; Atwood v. Edenfield, 150 Ga. 198, 103 S.E. 170.

The evidence in the instant case raised an issue, for determination by the jury, whether the sale was bona fide, or whether the vendor's purpose and intent in making it was to defraud the plaintiff creditor, and, if such fraudulent purpose did exist, whether the claimant had notice thereof or reasonable cause to suspect the same. There were also circumstances sufficient to raise an issue as to whether the claimant had actual notice of the judgment, though the fi. fa. was not recorded in time to give constructive notice. If so, the actual bona fides would have become immaterial. Notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge, in fixing the rights of parties. Civil Code 1910, § 4530. The court therefore erred in directing a verdict for the claimant. See Nicol v. Crittenden, 55 Ga. 497 (3); Planters' & Miners' Bank v. Willeo Cotton Mills, 60 Ga. 168 (1).

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Proceeding in fi. fa. by Mrs. Louella Greene against Charles Marion Greene, wherein W. C. Matthews filed a claim. Judgment for claimant on a directed verdict, and plaintiff in fi. fa. brings error. Reversed.

On October 7, 1922, a fi. fa. was issued in favor of Mrs. Louella Greene against Charles Marion Greene for $405 principal, besides costs, founded upon a judgment dated the previous January 17th. The fi. fa. on the day of its issuance was recorded and levied upon an automobile to which W. C. Matthews filed a claim. Upon the trial of the issue thus formed, the court, at the conclusion of the evidence, directed a verdict in favor of the claimant. The plaintiff in fi. fa. excepted. There was evidence authorizing the inference that the property was found in the possession of the defendant at the time of the levy, though this is not shown in the entry.

The testimony of the claimant was as follows:

"The automobile levied on in this case is my property. This is the bill of sale Mr. Greene executed to me. This certificate is from secretary of state's office showing change of license number to me. The application was made on same date that I bought the car. These checks paid for purchase price of the car. The writing 'on car' was on check at the time it was written. I paid purchase price of $400. About November 1, 1921, I loaned Mr. Greene $50. About the middle of December I let him have $50 more. These loans were in cash. About March he wanted more money. I couldn't see my way clear to let him have it, he owed me $100, and couldn't pay it. I couldn't let him have any more. He said, 'That will force me to dispose of my automobile. How about you buying it.' Said he would sell it to me for $400. I told him I could not give him all the money at that time, 'but can pay for it, and can give you some money now.' He said, 'If you will let me have the car, and if you will buy the car, I will take $50 now and balance as I need it, or as you can raise it.' So in June I gave him $50 more. He executed to me a bill of sale in March. In June I gave him the other $50. We agreed in March that I would let him use the car on the road, he to take care of it, and pay rental for it while using it. He was a traveling salesman. He was to pay for gas, and keep it all doped up, and to pay rent at a dollar a day while he was on the road. Saturdays while I was at work he used it to run around town. He used it for nothing. He paid some money down on the rental of the car, and in

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