Hoffer v. Gladden

• Decision Date: 31 October 1885
• Citation: 75 Ga. 532
• Parties: Hoffer. vs. Gladden, sheriff, et al.
• Court: Georgia Supreme Court

75 Ga. 532

Hoffer. vs. Gladden, sheriff, et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Evidence. Practice in Supreme Court. Fraud. Mort-gage. Debtor and Creditor. Record. Charge of Court Before Judge Lumpkin. Bartow Superior Court. January Adjourned Term, 1885.

To the report contained in the decision, it is necessary to add only that the grounds of the motion for a new trial were, in brief, as follows:

(1) to (4). Because the court erred in admitting in evidence the testimony of certain named witnesses, over objections of counsel for Hoffer, the claimant of the fund. [The testimony objected to is stated, but not the grounds of objection.]

(5.) Because the court charged as follows: "The true date of a mortgage was the day it was executed and delivered, although it might be a different date on its face. Counsel for Hoffer concede that both mortgages were executed on 23d day of June, 1882. If these mortgages reached Hoffer, or any one authorized to receive them for him, that would be a sufficient delivery; otherwise, not. On looking at the mortgage, dated 27th April, 1882, and holding it up to the light, you will see that the attestation clause is pasted over an acknowledgment made before a notary public in St. Louis, Missouri, May 5th, 1882. Now, in reference to this, I charge you that if, in ignorance of the law, the parties execute a mortgage defectively, it is no fraud, when they find out that it is defectively executed, to have it executed properly; but you, gentlemen of the jury, are to pass upon the question as to whether it was fraudulently executed or not, and in doing so, you can look to anything that appears on the face of the mortgage or on the mortgage in connection with the other evidence, in determining the question." [The court added the following note:

"As to the fifth ground, the court certifies one of the mortgages had a piece of paper pasted over what appeared to be a previous acknowledgment of it before a notary public, which could be read through the top paper, when held to the light, and the execution before the commissioner of deeds was written on the top paper. This was thematter concerning which the court left the jury to determine whether there was evidence of fraud in the execution which is complained of in this ground."]

(6), (7), (8.) Because the court gave in charge to the jury §§3173, 3176, 2751 of the Code, on the subject of fraud.

(9.) Because the court charged the jury that, pending-suit, insolvency and transfer of entire estate were badges of fraud; and then added: " Any unusual act outside of the usual course of business, or differing from the manner in which such business is generally transacted, which would excite suspicion that the transaction was unfair, would be a badge of fraud from which its existence may be inferred."—The objection was that " no unusual act was described or defined as being a badge of fraud, and the jury were left to conjecture and determine for themselves what was usual."

(10.) Because the. court charged that a failure to produce testimony was a badge of fraud; also that secrecy or concealment was a badge of fraud.—The objection was that there was no evidence, as movant insisted, that he was in possession of any testimony which was not produced, or of any secrecy or concealment on his part.

(11.) Because the court charged that subsequent concealment of a mortgage or fraud would be sufficient to set the transaction aside as to subsequent creditors, provided they were misled by such concealment, as proved, to their injury; but such subsequent concealment would not amount to a fraud as to debts existing when the mortgage was made.

(12.) Because the court gave in charge §1952 of the Code, as to acts void against creditors.

(13,) (14). Because the verdict was contrary to law and evidence.

The motion was overruled, and Hoffer excepted.

Graham & Graham, for plaintiff in error.

J. M. Neel,; John H. Wikle; John W. Akin; R. W. Murphey, for defendants.

Jackson, Chief Justice.

A fund raised from the sale of property of the Republic Iron Mining Company was in the hands of the sheriff for distribution, under a rule made against him and an un-traversed answer by him. The plaintiff in error claimed the money by virtue of executions issued on foreclosing two mortgages. Defendants in error claimed under divers attachments of theirs, and made the allegation that the mortgages were fraudulent conveyances, designed to hinder and delay them in getting their money, and therefore void. Issue was joined on the denial of this allegation by plaintiff in error; the issue was found in favor of the allegation of fraud, and judgment rendered accordingly. A motion for a new trial was refused, and plaintiff in error assigns error here on the several grounds taken in the motion.

1. The assignments of error on the 1st, 2d, 3d and 4th grounds of the motion cannot be considered here, because they all go to the admission of evidence, and the ground on which that evidence was objected to is not specified in either of the several grounds of the motion above numbered.

2. There was no error, on this issue, in giving in charge to the jury the 3173d, 3176th and 2751st sections of the Code, which define constructive and actual fraud, and announce that, fraud may be consummated by signs or tricks, or through agents employed to deceive, or any other unfair way used to cheat another, and declare that fraud voids all contracts, and though it cannot be presumed, yet is subtle in itself, and slight...