Loewenherz v. Merchants' & Mechanics' Bank of Columbus

• Citation: 87 S.E. 778,144 Ga. 556
• Decision Date: 15 January 1916
• Docket Number: 198.
• Parties: LOEWENHERZ v. MERCHANTS' & MECHANICS' BANK OF COLUMBUS.
• Court: Supreme Court of Georgia

87 S.E. 778

144 Ga. 556

LOEWENHERZ v. MERCHANTS' & MECHANICS' BANK OF COLUMBUS.

No. 198.

Supreme Court of Georgia

January 15, 1916

Syllabus by the Court.

In the motion for a new trial there are numerous exceptions to the charges of the court on the ground that there was no evidence to authorize the instructions criticized. An examination of the evidence contained in the record shows that in each case such exception is without merit. For, while as to some of the issues covered by the instructions complained of there may have been no direct evidence, there were facts in evidence from which the jury would have been authorized to draw deductions which would have supported the contentions of the defendant in error relatively to those issues.

The requests to charge, so far as they were legal and pertinent were covered by the general charge.

The case being remanded for a new trial upon another ground, it is unnecessary to determine or decide questions made by assignments of error upon rulings of the court refusing to declare a mistrial based upon certain incidents occurring during the trial, as those incidents will probably not occur at the next hearing.

The court erred in instructing the jury that if one who was insolvent conveyed to another property upon which he owed an unpaid balance of the purchase price, upon the sole consideration of payment of the balance of the purchase money, by the transferee, such a conveyance would be without a valid consideration and void as against other creditors that the equity which the vendor had, if he had an equity, in the property under the circumstances stated was subject to his debts, and that he could only "convey it for a valuable consideration. Otherwise it belonged to his creditors, and he could not give it away to a person, without receiving something for it which would inure either to the benefit of himself or his creditors." A conveyance by an insolvent under the circumstances to another party upon the consideration of the payment by the latter of the balance of the unpaid purchase money would not be without consideration and would not be a mere voluntary conveyance, and it was error to so instruct the jury, though they might properly have been informed that in passing upon the bona fides of the transaction between the vendor and his transferee they could take into consideration the value of the equity in the land with which the vendor was vested and the amount of the unpaid purchase money, and the insolvency of the grantor. Civ. Code 1910, § 4244; Martin v. White, 115 Ga. 866, 42 S.E 279.

The court erred in admitting certain documentary evidence showing that the witness in a criminal case had declined to answer before the grand jury certain questions propounded to him on the ground that his answer to those questions might tend to criminate himself. The admission of this evidence tended to destroy or at least abridge the privileges of the witness guaranteed by the Constitution of this state of refusing to answer questions tending to criminate him, and to deprive him of the protection of that privilege which it was the purpose of the Constitution to give.

Error from Superior Court, Muscogee County; L. C. Slade, Judge.

Claim case by L. Loewenherz against the Merchants' & Mechanics' Bank of Columbus. Judgment for the bank, and claimant brings error. Reversed.

Under Const. art. 1, § 1, par. 6, Civ.Code 1910, § 6362, held, that the admission of documentary evidence showing that the witness in a criminal case had refused to answer certain questions before the grand jury on the ground that they might tend to incriminate him, was error.

A. fi. fa. in favor of Merchants' & Mechanics' Bank against H. M. Mooty was levied upon certain real estate in the city of Columbus, as the property of the defendant in fi. fa., and Leo Loewenherz interposed his claim to the property. When the case came on for trial the plaintiff tendered issue, and set up specifically certain grounds upon which it claimed the property was subject. They were in substance as follows: First, that while the defendant in fi. fa. had executed a deed of conveyance to the claimant, the former at the date of the conveyance was indebted to the plaintiff in the sum of $400, besides interest, which debt was the foundation of the judgment upon which the execution levied was based, and the deed from the defendant in fi. fa. to the claimant was without consideration and merely a voluntary deed. Second, that the deed was executed by the defendant in fi. fa. under coercion and to prevent the prosecution of him for embezzlement. Third, that the defendant in fi. fa. conveyed to the claimant all other lands of which he was seised and possessed, thereby rendering himself insolvent; and that the deeds of conveyance were made with intention to delay or defraud creditors, the claimant knowing of the intention with which they were executed. Fourth, that at the time of the execution of the deeds the defendant in fi. fa. reserved a benefit to himself. On the trial the jury returned a verdict for the plaintiff. A motion for a new trial, made by the claimant, was overruled, and he excepted.

During the trial the court admitted in evidence, over objections duly made, certified copies of two documents, as follows:

"In re L. Loewenherz. Attachment for Contempt.

It appearing to the court that the grand jury at this the May term, 1913, of Muscogee superior court, has pending before them the investigation of the case of State v. H. M. Mooty charged with the offense of larceny after trust; and it further appearing that L. Loewenherz has been called before said body and duly sworn as a witness in behalf of the state in said case therein pending; and it further appearing that the following questions have been propounded to the said Loewenherz by the solicitor general of this court; and it further appearing that said Loewenherz refuses and declines to answer said questions, to wit: Q. Has the said

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