Leachman v. Cobb Development Co., 25608
| Decision Date | 05 February 1970 |
| Docket Number | No. 25608,25608 |
| Citation | 226 Ga. 103,172 S.E.2d 688 |
| Court | Georgia Supreme Court |
| Parties | Marie LEACHMAN, Trustee v. COBB DEVELOPMENT COMPANY. |
Syllabus by the Court
1. The complaint alleged a fraudulent conveyance to delay creditors under Code § 28-201(3) with sufficient particularity to meet the requirement of Code Ann. § 81A-109(b).
2. The failure to allege that the property was still owned by the alleged fraudulent grantee did not make the complaint subject to dismissal, since the grantee could be required to account for any money received for a conveyance of the property.
Levine & Cohn, Morton P. Levine, Walter Beasley, Atlanta, for appellant.
Frank D. Holcomb, Robert E. McDuff, Marietta, for appellee.
The appeal is from a judgment sustaining the defendant's motion to dismiss the plaintiff's complaint.
The complaint was filed by the plaintiff as trustee in bankruptcy for H. A. Walker, Sr., H. A. Walker, Jr., and Walker & Walker Builders, a partnership, and, as amended, prayed that a warranty deed from H. A. Walker, Sr., and H. A. Walker, Jr., to the defendant be declared null and void and be set aside, or in lieu thereof that the defendant pay to the plaintiff any and all equity in the real estate at the time of the conveyance.
1. The defendant (appellee) contends that the court properly sustained its motion to dismiss the complaint for the reason that the plaintiff failed to comply with the requirement of Code Ann. § 81A-109(b) (Ga.L.1966, pp. 609, 620) that, 'In all averments of fraud, * * * the circumstances constituting fraud * * * shall be stated with particularity.'
We believe the plaintiff met this requirement in alleging that the bankrupts transferred this property by deed without consideration at a time when they were insolvent or were rendered insolvent by the transfer, that the transfer was made to delay creditors, that they were coerced by the defendant to deed the property to it, and that at the time of the transfer the bankrupts had equity in the property.
Code § 28-201 provides: 'The following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void, viz.: * * * (3) Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at the time of such conveyance.'
Under this Code section a voluntary deed made by a debtor may be set aside by his creditor if the debtor was insolvent, or was thereby rendered insolvent. Cunningham v. Avakian, 192 Ga. 391(2), 15 S.E.2d 493; Neal v. Stapleton, 203 Ga. 236(2a), 46 S.E.2d 130; Downs v. Powell, 215 Ga. 62(2), 108 S.E.2d 715. Since the statute declares such a conveyance to be fraudulent in law, the allegations of the complaint allege fraud with the particularity required by Code Ann. § 81A-109(b).
2. The defendant makes the further contention that the complaint is fatally defective because it fails to allege that the property was still owned by the defendant at the time the action was...
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...with sufficient definiteness to advise the adversary of the conveyance which it must explain. See generally Leachman v. Cobb Dev. Co., 226 Ga. 103, 104(1), 172 S.E.2d 688 (1970). The claimant must aver a transfer of the property in question by the debtor to the alleged grantee, specify the ......
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Stone v. Davis, 33781
...of the defrauded creditors, and a fraudulent grantee can be compelled in equity to account for the money. Leachman v. Cobb Development Co., 226 Ga. 103, 172 S.E.2d 688 (1970); Young v. Wilson, 183 Ga. 59(1), 187 S.E. 44 (1936); Beasley v. Smith, 144 Ga. 377, 87 S.E. 293 (1915). Davis argues......