Mattox v. West

• Decision Date: 17 June 1942
• Docket Number: 14115.
• Parties: MATTOX v. WEST.
• Court: Georgia Supreme Court

21 S.E.2d 428

194 Ga. 310

MATTOX v. WEST.

No. 14115.

Supreme Court of Georgia

June 17, 1942

Rehearing Denied July 16, 1942.

Syllabus by the Court.

1. In a case where a wife interposed a statutory claim to land levied on as property of her husband and found in his possession, a transaction between the husband and the wife is subject to attack by a judgment creditor of the husband as fraudulent, under the Code, § 28-201, although among the means employed to convey the property into the wife was a deed from certain persons who had granted to the husband an option to purchase lands, which he transferred to his wife and procured extensions thereon in his name.

(a) The evidence did not demand a verdict in favor of the claimant.

(b) There was sufficient evidence to support the finding in favor of the contentions of the plaintiff in execution, and the verdict that the property levied on was subject.

2. The portions of the charge of the court complained of were not erroneous for any reason assigned.

An execution was issued, December 13, 1932, upon a judgment rendered December 9, 1932, in favor of D. F. Lee against C L. West, T. W. Mattox, and I. A. Heard. The debt was paid by West, and the execution was transferred to him on August 19 1938. It was levied, July 17, 1939, upon certain lands as the property of T. W. Mattox, to which his wife, Mrs. Pansy W. Mattox, filed a claim. The sheriff's entry recited that T. W. Mattox was found in possession. On the trial the claimant assumed the burden of proof. In the year 1929 T. W. Mattox owned the property now involved which with other property he conveyed to Mrs. Mattie B. Rodgers by security deed for a debt. In 1931 Mrs. Rodgers foreclosed, and became the purchaser taking fee simple title. Immediately before the foreclosure Mrs. Rodgers agreed that she would grant T. W. Mattox an option to purchase the property for the amount of the indebtedness; and after the sale, on September 18, 1931, she executed a written option to him for a period of six months. Mattox, not being able to exercise the option, procured R. M. Morrison and Ella Bell Carlton to become transferees of his option, and upon their compliance they received a deed from Mrs. Rodgers to all of the property on March 15, 1932. On the same date Morrison and Carlton executed to T. W. Mattox, his heirs and assigns, a written option to purchase all the property within two years, upon the payment of $11,000 plus interest. This option was transferred on November 28, 1932, by T. W. Mattox to Mrs. Pansy W. Mattox for a recited consideration of $10. On March 10, 1934, an extension of the option in the name of Mrs. Pansy W. Mattox was granted until September 15, 1934, and on September 14, 1934, another extension was granted in her name to purchase 'the property remaining undisposed of' until November 1, 1934, each of which extensions stated that the consideration therefor was $1. With the consent of T. W. Mattox and Mrs. Pansy W. Mattox, certain portions of the property had been sold, the proceeds of which were applied against the purchase consideration, leaving a balance of $688.04, which was paid to Morrison and Carlton, who, on November 1, 1934, conveyed to Mrs. Pansy W. Mattox by warranty deed the remaining property consisting of a duplex house and lot in the City of Moultrie, and a farm containing 68 acres including the 30 acres levied on and claimed. This deed was put in evidence by the claimant. On even date with the execution of the deed Mrs. Pansy W. Mattox and T. W. Mattox signed a cancellation entry on the back of the Morrison and Carlton option, which entry recited: 'The terms of the within option have been fully complied with, deeds have been made to the property described in same as directed by us, and same is fully satisfied and surrendered.'

T. W. Mattox, the only witness for the claimant, testified that at the time of the levy he and his wife resided on the land, but he had no claim to the property. A part of the money his wife paid for the deed was her own, but he thought she borrowed some of it from their daughter, and none of it belonged to the witness. Mr. Morrison and Mrs. Mattox, with the help of the witness, negotiated the sales for the portions which realized about $10,500 to apply on the option. He had previously used something over $3,000 of his wife's money and the only way he had of paying was to transfer the option to her. The extensions of the option were made without the payment of any new consideration. His acts subsequently to the transfer were in behalf of his wife. In 1931 at the time of the transfer to his wife he could not pay his debts; he had some mules and cattle, and another 516 acres of land which was then encumbered, and later was taken over by the loan company. All he had left was a few law books. The suit upon which the judgment was rendered was pending about a year before the transfer of the option to his wife. The duplex house and lot was worth between $4,000 and $5,000 and the farm an equal amount; but if the farm was made into a subdivision it would bring $7,000 to $7,500, according to the husband's testimony. The plaintiff in fi. fa. introduced in evidence the several mentioned options, transfers, extensions, cancellation entry, and certain writings signed by Pansy W. West authorizing sales of certain portions of the city property for such sums as R. M. Morrison and T. W. Mattox might agree upon. An attorney at law, as a witness for the plaintiff, testified that he represented Morrison and Carlton in the transaction, and at the time they executed the option to T. W. Mattox the matter was handled by the husband and wife. The witness recognized his signature appearing as a witness on the transfer and extensions, and stated that they were probably written in his office. Mr. Mattox requested the extensions, and Mrs. Mattox had nothing to do with them so far as the witness knew. The witness never discussed the matter with Mrs. Mattox, or, if he did, it was only casually when the deed was prepared. The burden of the transaction was handled by the husband. As to value the witness testified that before the parcels were sold the property was worth something like $20,000 or $25,000, and as to the remaining property conveyed by deed to Mrs. Pansy W. Mattox the duplex house and lot was worth between $3,000 and $4,000, and the farm between $5,000 and $8,000.

The jury found the property subject to the execution. A motion for new trial was overruled, and the claimant excepted.

Clifford E. Hay, of Thomasville, for plaintiff in error.

Hoyt H. Whelchel, of Moultrie, for defendant in error.

REID Chief Justice.

1. In the first special ground of the motion for new trial it is contended that the evidence demanded a verdict in favor of the claimant. It is insisted that an option to buy land or a transfer of such instrument from the optionee, a husband, to his wife, does not grant any attachable interest or stand upon the same footing as a conveyance; and that an extension of an option is, in legal effect, a new option, so that where the wife acquired title by a deed from optionors, not during the original term of the option, but during the time of the second extension made thereon to the wife in her name whether or not the consideration for the extensions were paid, such transaction is not subject to attack as fraudulent by a creditor of the husband in a levy and claim case, according to the contention of the plaintiff in error. Acts by debtors declared fraudulent against creditors, and as to them void, are enumerated in the Code, § 28-201, as follows: '1. Every assignment or transfer by a debtor, insolvent at the time, of real or personal property, or choses in action of any description, to any person, either in trust or for the benefit of, or in behalf of, creditors, where any trust or benefit is reserved to the assignor or any person for him. * * * 2. Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description, had or made...