McDowell v. McMurria

• Decision Date: 07 June 1899
• Parties: McDOWELL v. McMURRIA et al.
• Court: Georgia Supreme Court

33 S.E. 709

107 Ga. 812

McDOWELL v. McMURRIA et al.

Supreme Court of Georgia

June 7, 1899

Syllabus by the Court.

1. When, in a petition filed by creditors, a conveyance of property was attacked as being fraudulent and void because it was executed for the purpose of hindering, delaying, and defrauding the creditors of the grantor, and the latter and his grantee in the deed were made parties defendant to the case, and when, after a trial on the merits, the court in general terms adjudged that such deed, for the reason alleged, was null and void, and that it be delivered into court, and canceled, and when nothing more appears, such decree will be construed as declaring the deed to be null and void as to the complaining creditors, and not as adjudicating the invalidity of the instrument as between the parties thereto.

2. A deed made to defraud creditors, though void as to them, is good between the grantor and the grantee; and the former after executing such deed, has no title to the property thereby conveyed, and therefore cannot have the same set apart and exempted as a homestead under the laws of this state. "In attempting to place his property beyond the reach of his creditors, he [grantor] has placed his exemptions beyond his own reach."

Error from superior court, Baker county; W. N. Spence, Judge.

Application of A. I. McMurria for allotment of a homestead, and to enjoin T. B. McDowell, receiver, and others. Judgment for plaintiff and the receiver brings error. Reversed.

R. H Powell & Son and Harrison & Bryan, for plaintiff in error.

Donalson & Hawes, for defendant in error.

LITTLE J.

The record under which this case is to be determined is very meager and imperfect, and it may be, in determining the case, that we are not in full possession of the facts as they transpired on the hearing. So far as we are able to ascertain, it appears that A. I. McMurria & Son was a mercantile firm engaged in business; that the firm failed; that A. I. McMurria conveyed to A. G. McMurria, trustee for the children of the grantor, certain real and personal property in the county of Baker; that such conveyance was voluntary; subsequently Everett, Didley Ragan Company, and other creditors filed a creditors' bill against A. I. McMurria, C. C. McMurria, being the firm of A. I. McMurria & Son, and A. G. McMurria, trustee, attacking the deed made to the trustee as fraudulent and void against such creditors; that a decree was rendered in the superior court of Calhoun county declaring that such deed was null and void, and decreeing and adjudging that said deed be delivered up to be canceled; that a receiver was appointed, and directed to take charge of such real and personal property, and sell the same for the benefit of the creditors of A. I. McMurria & Son; that subsequently A. I. McMurria applied to the ordinary of Baker county to have a homestead and exemption set apart to him, as the head of a family, out of said property, and by the petition which is the foundation of the present case he sought to restrain the receiver from proceeding to sell said property, and from turning him out of possession, until the said application for homestead could be heard and determined by the ordinary. The receiver answered the petition in the nature of a cross bill, and, having set up the above facts, he prayed that the ordinary be enjoined from further proceeding under the application for homestead. On the hearing, the judge of the superior court refused to enjoin the ordinary, and enjoined the receiver as prayed for in the petition. The receiver excepted, and we are to determine whether the court erred in granting the injunction.

It is only necessary, for a proper determination of the case, that two questions should be considered: First, what is a proper construction of the decree which declares the deed made by A. I. McMurria to A. G. McMurria, trustee, null and void? and, second, did such deed so devest the title of A. I. McMurria to the property as to prevent the setting apart of a homestead and exemption to him as the head of a family out of the same.

1. The record does not contain a copy of the decree. It is, however recited that it declared the deed to be null and void, and that it was adjudged that said deed be delivered into court, and canceled. It is further recited that the proceeding under which such decree was rendered was a creditors' bill, and that the auditor to whom the case was referred reported that such deed was made to hinder, delay, and defraud creditors, and such a report was undoubtedly the basis of the decree which was rendered. It will be noted that it was not only filed against the firm of McMurria & Son, the debtors, but also against the trustee to whom the land had been conveyed. We know of no law which declares a conveyance made for the purpose of hindering, delaying, or defrauding creditors absolutely null and void. The provision of the statute, as will be hereafter more fully seen, is that such conveyance, when the intention of the grantor is known to the grantee, is fraudulent and void as to creditors. The proceedings taken to avoid this deed were by the creditors of the grantor, and the object had in view was, of course, to subject the property to the claims of the complaining creditors; and when the decree declared that such deed was null and void, and that it be delivered up and canceled in construing it, reference must be had to the pleadings and purposes of the bill to ascertain the meaning of the decree. The creditors who sought to have the deed invalidated were not concerned with the relation which the law established between the grantor and the grantee of the instrument, but it was filed and prosecuted alone for the purpose, so far as this record shows or intimates, of subjecting the property conveyed to the debts of...