Ross v. Cooley

• Decision Date: 22 July 1901
• Citation: 113 Ga. 1047,39 S.E. 471
• Parties: ROSS. v. COOLEY.
• Court: Georgia Supreme Court

39 S.E. 471

113 Ga. 1047

ROSS.

v.COOLEY.

Supreme Court of Georgia.

July 22, 1901.

FRAUDULENT CONVEYANCE—CHANGE OF POSSESSION—PROPERTY OF MINOR—EXECUTION—CLAIM OF THIRD PERSON. 1. As a general rule, possession of personalty by an alleged donor, after he had executed aninstrument purporting to evidence a gift of the property, is a badge of fraud, which, in proceedings instituted by a judgment creditor of the former to subject the property to his debt, must be satisfactorily explained in order to uphold the validity of the gift.

2. The property of one person cannot ordinarily be made subject to the payment of the debts of another. The right of a creditor to subject the property of one having title thereto to the debt of another, on the theory that credit was extended to the possessor, upon the faith of his apparent ownership, rests on purely equitable grounds, the underlying principle of which is that the owner, by concealing his title, permitted the person in possession and use of the property to commit a fraud on the creditor.

3. When it is made to appear that a father owing no debts at the time, by an instrument in writing, conveyed title to personal property to his minor son, and delivered the instrument to the donee, and kept possession of the property for him, and in the regular course of business, more than a year thereafter, contracted a debt which he was unable to pay, the question whether such property is subject to the debt depends on the bona fides of the gift, and is not affected by the claim that credit was extended to the father on the faith of his owning such property, the creditor not having taken a lien. Dodd v. Bond, 14 S. E. 581, 88 Ga. 355. (a) The father being the proper custodian of property belonging to his minor child, possession of such by him is not indicative of fraud. Hargrove v. Turner, 37 S. E. 89, 112 Ga. 134, and authorities there cited.

4. A verdict for the claimant was a proper one in this case, and the judge committed no error in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from city court of Savannah; T. M. Norwood, Judge.

Trial of right to property between Martin Cooley and P. S. Ross. From a judgment for claimant, Ross brings error. Affirmed.

Lester & Ravenel, for plaintiff in error.

W. P. La Roche, for defendant in error.

PER CURIAM. Judgment affirmed.