Lewis v. Lewis, 18420
| Decision Date | 09 February 1954 |
| Docket Number | No. 18420,18420 |
| Citation | 210 Ga. 330,80 S.E.2d 312 |
| Parties | LEWIS v. LEWIS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. There was no error in refusing to admit in evidence the pleadings in the divorce case between the plaintiff and the defendant Lewis, the verdict and final decree having been admitted.
2. The evidence as to whether the defendant Lewis had executed a deed to the defendant Graham, his attorney at law, conveying the property occupied by the plaintiff and the children, for the purpose of hindering, delaying, or defrauding her in the collection of alimony for the support of herself and the children, and as to whether the defendant Graham knew or had reasonable ground to suspect such intention, was sufficient to raise an issue for determination by the jury, and it was error for the court to grant a nonsuit.
Frank M. Gleason, Gleason & Painter, Rossville, for plaintiff in error.
Fariss & Fariss, LaFayette, Dietzen, Graham & Dietzen, Chattanooga, Tenn., for defendant in error.
Winona Williams Lewis filed her petition against John Leslie Lewis and Raymond Graham, wherein she sought to cancel a deed from Lewis to Graham to a house and lot, and to restrain Graham for instituting any proceedings to evict her from the premises. It was alleged: On June 17, 1952, she instituted a suit in Walker Superior Court against Lewis, in which she sought a divorce and alimony for the support of herself and minor children, which case was still pending. After said petition was filed, she learned that her husband on May 29, 1952, had executed a purported deed to the defendant Graham, an attorney at law, reciting as consideration the sum of $500 as attorney's fee, a note for $700, and the assumption of a loan against the property. At the time the deed was executed, the plaintiff and her husband were living in a state of separation, and he executed said deed for the purpose of defeating her claim for alimony; Raymond Graham was a party to this scheme, and knew when he took said deed that it was the purpose of the husband to defeat, hinder, and delay the plaintiff in the collection of alimony, and the making of said deed rendered the husband insolvent.
The defendants filed a joint answer, in which they admitted the pendency of the divorce and alimony suit and the execution of the deed, but denied all allegations that the deed was executed to hinder, defeat, or delay the plaintiff's claim, but alleged that the transaction was bona fide and was based upon a valuable consideration. On the trial, at the conclusion of the plaintiff's evidence the court granted a nonsuit. By direct bill of exceptions the plaintiff assigns error on this judgment, and on certain rulings made during the trial.
1. At the time of the trial, the plaintiff had obtained a final verdict and decree in the divorce and alimony case, and copies of the verdict and decree were admitted in evidence. The plaintiff tendered in evidence the petition, an amendment thereto, and the answer of the husband, in the divorce proceedings. The objections of the defendants to the admission of these documents were sustained, and error is assigned on this ruling. This ruling was not erroneous. The defendants in their answer admitted the allegations of the petition as to the filing and pendency of the petition as suit. There were no allegations in these pleadings which were admitted by the defendant Lewis that were relevant to the issues of fraudulent intent of the husband, or as to knowledge of Graham of the husband's intent at the time the deed was executed.
2. The sole question remaining is: Did the court err in granting a nonsuit? The petition stated a cause of action under Code, § 28-201, subd. 2, which provides that, where a conveyance of real estate is made with intention to delay or defraud creditors, and such intention is known to the grantee, such conveyance shall be null and void against creditors and others; but that a bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion, shall be valid. The deed here involved having been executed while the husband and wife were living separate and apart, her claim for support of herself and children gave her the status of a creditor, and entitled her to bring an action to set the deed aside. Stephens v. Stephens, 168 Ga. 630, 148 S.E. 522; McGahee v. McGahee, 204 Ga. 91, 48 S.E.2d 675. The question as to whether the deed was executed by the grantor with intention to delay or defraud his wife in the collection of alimony and such intention was known to the grantee, or whether the transaction was a bona fide one upon a valuable consideration and without notice or ground for reasonable suspicion, is ordinarily one for determination by a jury. Lane v. Newton, 145 Ga. 810, 89 S.E. 1083; Fields v. Marchman, 179 Ga. 613, 176 S.E. 635; Blevins v. Pittman, 189 Ga. 789(6), 7 S.E.2d 662.
The brief of evidence discloses the following facts: At the time of the separation on April 14, 1952, the husband left the wife and children in possession of the home place, the subject matter of the deed, which he at the time owned. A few day thereafter her employed Graham, an attorney at law, to represent him in any action for divorce by him or his wife, paying him $10 as a retainer. A fee of $500 was agreed on between the parties for services to be rendered by Graham in bringing a divorce action against the wife. The husband told Graham he had no money, and would have to pay him in property. They agreed that for a consideration of $1,200, $500 of which would represent payment of the divorce suit fee and a purchase money note of $700, and the assumption of a loan against the property, the husband would deed the home place to Graham. The deed was executed according to the terms of this agreement on May 28, 1952, and was recorded on the following day. The deed recites that the original principal amount of the loan note as of September 21, 1946, was $4,100, but there was no evidence as to the exact amount which was due on May 28, 1952. At the time the deed was executed, the husband told Graham that he had separated from his family, and that his wife and children were living in the property described in the deed. Graham did not go out and look at the property, and had never seen it, but valued the husband's equity on information given him by the husband. ...
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