Pool v. Gramling, Spalding & Co.

• Court: Georgia Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Pool v. Gramling, Spalding & Co., 88 Ga. 653, 16 S.E. 52 (Ga. 1891)
• Decision Date: 07 December 1891
• Parties: POOL et al. v. GRAMLING et al.

16 S.E. 52

88 Ga. 653

POOL et al. v. GRAMLING et al.

Supreme Court of Georgia

December 7, 1891

Syllabus by the Court.

1. A bill filed under the insolvent traders' act, in December 1885, by the creditors of a firm, alleging insolvency both of the firm and the individual members thereof, and fraud in conveying the assets of one of the members to his individual creditors, which creditors are made parties defendant, can be used to set aside such conveyances if found fraudulent, and the bill is therefore not without equity as to these defendants.

2. When exceptions to a master's report are demurred to on the ground that they "do not plainly and distinctly state the finding or decision complained of and the error committed," this does not raise the objection that the exceptions are not separately classified as exceptions of law and exceptions of fact.

3. Construing the exceptions to the master's report in the light of the whole record, they are sufficiently plain and distinct as to the findings or decisions complained of and the errors committed.

4. In a civil case the defendants are not entitled to a separate trial, nor is each entitled to strike the full number of jurors, but all of the defendants must join in striking the jury. Where the regular number of strikes has been exceeded and the jury is thus reduced to 11, the last man stricken should be restored to the list.

5. Though the report of the master is prima facie the truth, and the burden of proof is on the party excepting thereto, and a request so to charge ought to be given, yet a request to charge "that the report of the auditor is prima facie correct, and should be taken as a correct finding on the facts of the case, and the burden of showing that it is erroneous is on the plaintiffs," is not quite accurate and for that reason may be declined.

6. In view of the whole charge as given, it was not error to decline the various requests to charge set out in the record.

7. Where a creditor holds an absolute deed as security for a debt, with his bond to reconvey outstanding, and, upon the debtor afterwards becoming insolvent, he takes the property in payment of the debt, the value being largely in excess of the amount of the debt, other creditors may have the property administered in equity as the assets of an insolvent, and the proceeds applied first to the secured debt, and the surplus to their own claims. This may be done without first tendering to the secured creditor payment of his claim.

8. Though the property may consist of a stock of goods, it is generally rightful, and not fraudulent, for a mortgagee to leave the same in the possession of the mortgagor, who is conducting an active business; yet this circumstance, taken in connection with others strongly tending to show that the debt was not bona fide, and that the debtor was about to fail in business, might authorize an inference of fraud by the jury.

9. The statute (Acts 1881, p. 115) authorizes a court in all civil cases, on request of the jury, to instruct them on the form of their verdict; and such request will be presumed where the court so instructs, unless the contrary appears.

Error from superior court, Douglas county; R. H. CLARK, Judge.

In a civil action defendants are not entitled to a separate trial.

The following is the substance of the official report:

On December 28, 1885, Gramling, Spalding & Co. et al., creditors by open account of the firm of Turner & Hudson, composed of G. R. Turner and Allen Hudson, filed their bill against that firm and against W. H. Pool, E. L. Ergle, Samuel Turner, and the sheriff, for injunction, receiver, and other equitable relief. In this bill the complainants alleged that Turner & Hudson were insolvent traders, and attacked as fraudulent and void a deed from G. R. Turner to W. H. Pool, dated March 19 1884, and recorded December 18, 1885, and foreclosed six days afterwards. They also attacked as fraudulent and without consideration a transfer from G. R. Turner to Samuel Turner of certain promissory notes which had been given by A. S Gresham for land sold to him by G. R. Turner. The deed to Pool covers realty on which stand the storehouse in which Turner & Hudson did business, the dwelling house in which G R. Turner lived, and another house. The mortgage to Ergle covers all the goods in the store at the time it was made. The complainants allege that the deed to Pool was executed and is held for the purpose of delaying and defeating the collection of debts due by Turner & Hudson to complainants and other creditors; that Turner & Hudson were allowed to remain in possession of the property thereby conveyed; that its execution was kept secret, and it was kept off record, for the express purpose of inducing complainants and others to extend credit, and was not recorded until the insolvency of Turner & Hudson was fully known in the county; that, before complainants would extend credit, Turner & Hudson represented to them that they owned the property, and on the faith of this property complainants sold them goods; and that if it should appear that there is any amount due by Turner to Pool for which this property is bound the same should be sold, Pool's debt satisfied from the money so obtained, the remainder be paid to complainants, and the deed to Pool be canceled. As to the Ergle mortgage, the complainants allege that, according to their information and belief, Turner & Hudson did not owe Ergle the amount ($735) for which the mortgage was made, but it was executed with an understanding between them, so as to ward off other creditors, and after its execution Turner & Hudson continued to sell goods from the store with the consent of Ergle, who knew at the time that they were insolvent, and owed complainants and others, but allowed them to sell several hundred dollars' worth of goods before foreclosing, the amount of which sales should go as a credit on his mortgage if it be held good. They further allege that within the past few days, and since it was found out that Turner & Hudson were insolvent, G. R. Turner confederated with Samuel Turner, who is his uncle or other relative, and they...