McCallie v. McCallie

• Decision Date: 11 September 1941
• Docket Number: 13830.
• Citation: 16 S.E.2d 562,192 Ga. 699
• Parties: McCALLIE et al. v. McCALLIE.
• Court: Georgia Supreme Court

16 S.E.2d 562

192 Ga. 699

McCALLIE et al. v. McCALLIE.

No. 13830.

Supreme Court of Georgia

September 11, 1941

Syllabus by the Court.

1. (a) In an action by a wife to recover alimony and to set aside, as fraudulent, a deed made by her husband to his sister, it is improper to instruct the jury that transactions between near relatives 'should be scanned with care, and slight evidence of the fraud may be sufficient to set the transaction aside,' in the absence of qualification that this rule does not apply unless there is proof otherwise suggesting fraud.

(b) It is also error in such case to instruct the jury that 'A conveyance by a brother to a sister, made at a time when he and his wife were living in a bona fide state of separation, which fact was known to the sister, renders such conveyance prima facie void, and the burden should be on the defendant to show the bona fides of the transaction.'

2. In so far as the excerpt quoted in the second division of the opinion may be subject to the criticism that it authorized the jury to set the deed aside simply upon a finding that the grantee knew that the plaintiff was contemplating filing suit for alimony, without respect to the intent of the husband in making the deed, this ambiguity may be guarded against on the new trial.

3. It was erroneous to give in charge to the jury the provisions of the Code, § 38-119, since it attached an unfavorable presumption to the failure of the defendant husband to testify. Thompson v. Davitte, 59 Ga. 472, followed in this respect.

4. There was no error in failing to give to the jury the definition of cruel treatment. The allegations of the plaintiff's petition and her testimony, which was not materially contradicted, showed that the defendant husband abandoned her and her children and took up his residence elsewhere, and in such case the plaintiff was entitled to recover alimony irrespectively of whether the husband had been guilty of acts of cruelty. Durham v. Durham, 156 Ga. 454, 119 S.E. 702, distinguished, since in that case the wife brought about the separation.

5. No further errors appear. The court erred in overruling the motion for new trial.

Frank M. Gleason and Gleason & Collins, all of Rossville, for plaintiffs in error.

Rosser & Rosser and Shaw & Shaw, all of LaFayette for defendant in error.

REID Chief Justice.

1. Under the provisions of the Code, § 28-201(2), a deed executed by a husband living separate and apart from his wife, conveying certain of his property to another person with the intent and purpose of defeating the wife's right to alimony, is invalid as to the wife if the grantee knew or had grounds for reasonable suspicion that such was the purpose of the husband, even though the deed was made to secure or in payment of a valid pre-existing debt due by the husband to the grantee (Wood v. Wood, 166 Ga. 519 143 S.E. 770; Stephens v. Stephens, 168 Ga. 630, 148 S.E. 522; Fields v. Marchman, 179 Ga. 613, 176 S.E 635; Sims v. Sims, 150 Okl. 138, 300 P. 692, 79 A.L.R. 421), and the wife may in the same action seek a recovery of a judgment for alimony and a cancellation of the deed. Wood v. Wood, supra; Keeter v. Bank of Ellijay, 190 Ga. 525, 526, 9 S.E.2d 761. Such is the purport of the present action brought by Mrs. Pearl McCallie against her husband and his sister, Mrs. A. L. Stoner (the grantee in the deed). Among other things, the judge charged the jury that 'transactions between mere relatives should be scanned with care, and slight evidence of fraud may be sufficient to set the transaction aside. A conveyance by a brother to a sister, made at a time when he and his wife were living in a bona fide state of separation, which fact was known to the sister, renders such conveyance prima facie void, and the burden should be on the defendant to show the bona fides of the transaction.' In our opinion this charge is erroneous and necessitates the grant of a new trial. Proof of near relationship between the parties to the deed, other than that of husband and wife, without more, is not sufficient to show fraud (Fouts v. Gardner, 157 Ga. 362, 121 S.E. 330; Webb-Crawford Co. v. Bozeman, 178 Ga. 328, 173 S.E. 144; Martin v. Martin, 180 Ga. 782, 180 S.E. 851; Gormley v. McNatt, 183 Ga. 315, 188 S.E. 535; Hicks v. Sharp, 89 Ga. 311, 15 S.E. 314), and it is improper to instruct the jury that transactions between near relatives 'should be scanned with care, and slight evidence of the fraud may be sufficient to set the transaction aside,' in the absence of qualification that this rule does not apply unless there is proof otherwise suggesting fraud. Hicks v. Sharp, supra; Edge v. Calhoun National Bank, 155 Ga. 821, 118 S.E. 359. We regard as even more serious error the other portion of this charge to the effect that if the sister knew at the time she accepted the deed that the grantor and his wife were living in a state of separation, this would render the conveyance prima facie void, and the burden would be on the grantee to show the bona fides, of the transaction. The fact of relationship, and the knowledge by the grantee that the grantor and his wife were living in a state of separation, are not such badges of fraud as would operate to make out a prima facie case and shift the burden. Cf. Coulter v. Lumpkin, 100 Ga. 784, 28 S.E. 459.

2. The judge charged the jury as follows: 'If you find under the facts and circumstances of this case that Mrs. Stoner had knowledge of the suit being brought for alimony, by the plaintiff in this case, against the defendant, her brother, or that Mrs. Stoner had reason to know or believe that Mrs. McCallie the plaintiff, contemplated the filing of this suit, all of which will be determined by the jury, and that J. A. McCallie made and executed a conveyance, if one was made and executed, to his sister, Mrs. A. L. Stoner, under these facts and circumstances and for the purpose of defeating Mrs. McCallie's suit for alimony; if you believe that Mrs. Stoner accepted the deed with knowledge of the filing of the suit, or had knowledge that Mrs. McCallie was contemplating filing a suit, then I charge you, you would be authorized to set the deed aside.' This charge is criticized as directing the jury to set aside the deed simply upon a finding that Mrs. Stoner knew that plaintiff was contemplating filing suit. The jury no doubt understood that it was necessary that they find that the deed was made by the husband with the intent to defraud the plaintiff; but the latter portion of the charge is not entirely free from the criticism made. Since the case goes back for another trial, the judge can guard against such ambiguity.

3. Another part of the judge's charge is as follows: 'I charge you gentlemen of the jury, that where a party has evidence within his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or having more certain and satisfactory evidence, relies on that which is of a weaker and inferior nature, a presumption arises that...