Maynard v. Armour Fertilizer Works

• Decision Date: 17 August 1912
• Citation: 75 S.E. 582,138 Ga. 549
• Parties: MAYNARD et al. v. ARMOUR FERTILIZER WORKS et al.
• Court: Georgia Supreme Court

75 S.E. 582

138 Ga. 549

MAYNARD et al. v. ARMOUR FERTILIZER WORKS et al.

Supreme Court of Georgia

August 17, 1912

Syllabus by the Court.

Where creditors obtained judgments against a common debtor, and had executions issued, on which entries of nulla bona were made they could file an equitable petition against the debtor and grantees to whom the debtor had executed a deed, attacking such conveyance as fraudulent, and made to delay or defraud them and other creditors, and seeking to subject said property. Such a petition, with proper allegations, would not be demurrable on the ground that the plaintiffs had an ample common-law remedy, without invoking equitable relief.

Nor would it be demurrable on the ground that there was a misjoinder of plaintiffs, in that several judgment creditors of the same debtor joined therein.

Nor on the ground that a judgment held by one of the plaintiffs was against the common debtor, and also against her husband, who was alleged to be insolvent.

The petition filed was demurrable. It nowhere alleged that the grantees in the deed attacked participated in a fraudulent plan (if it existed) to prevent the plaintiffs from collecting the amounts due them, or had notice thereof. The deed attacked bore date before the creation of the debts on which the judgments were founded. There was no distinct charge that it was not then executed. There was some suggestion that the valuable consideration recited in the deed was not paid, but there was no direct allegation to that effect.

If it was intended to charge that the grantees had no means with which to pay the recited consideration, or did not in fact pay it, such allegation should have been directly made, and not by mere inference from pleading collateral facts, which might possibly have an evidential value, and then drawing conclusions therefrom.

(a) Certain specified paragraphs in the petition are held to have been subject to special demurrer.

Error from Superior Court, Wilcox County; N. V. Whipple, Judge.

Bill by the Armour Fertilizer Works and others against Mrs. L. M Maynard and others. General and special demurrers to the petition having been overruled, defendants excepted, and bring error. Reversed.

Haygood & Cutts, of Fitzgerald, and M. B. Cannon, of Abbeville, for plaintiffs in error.

Hal Lawson, of Abbeville, for defendants in error.

LUMPKIN J. (after stating the facts as above).

1. Creditors, having reduced their claims to judgment, and having had entries of nulla bona made on the executions filed an equitable petition seeking to subject certain land which had been conveyed by the debtor to her two daughters and to have the deed canceled. The presiding judge overruled a demurrer to the petition, and the defendants excepted. One of the principal contentions on the part of the plaintiffs in error is that the defendants in error had a complete remedy at law, by levying their executions, and that there was no equity in a petition which sought to set aside a conveyance made by the debtor on the ground that it was fraudulent. This contention is unsound. Where the remedy at law is not as complete as in equity, equitable relief may be had. It has long been a recognized rule that, where judgment creditors cannot obtain payment of their judgments by levy and sale, and it is necessary to set aside fraudulent transactions, they may resort to a court having equitable jurisdiction. Formerly the more frequent contention advanced was that the creditor could not go into equity until after he had reduced his claim to judgment, and sometimes, it was said, not until after he had had an entry of nulla bona made. This was changed by the uniform procedure act of 1887, under which a creditor may at once proceed to obtain judgment on his claim, and to have a decree subjecting property fraudulently conveyed away by his debtor. De Lacy v. Hurst, 83 Ga. 223, 9 S.E. 1052. But the enlarging of the right of a creditor without judgment did not operate to destroy the pre-existing right of a creditor with a judgment. The former argument that one without a judgment and execution could obtain no equitable relief as against fraudulent conveyances is now reversed, and the contention is made that plaintiffs who have obtained judgments are entitled to no such relief. I omit reference to lien creditors other than by judgment. The plaintiffs in this case alleged that they had obtained judgments and had caused executions to be issued, and that the proper officer had made an entry of nulla bona thereon. This is sufficient to show that they have obtained an adjudication that they are entitled to payment and have procured executions to issue, but the levying officer can find nothing upon which to levy. They find confronting them a conveyance made by the debtor. Should they levy upon the property, they could not compel the daughters of the debtor (the grantees in the deed) to interpose a claim, or other proceeding, under which the title could...