Rowe v. Cole

• Decision Date: 23 February 1933
• Docket Number: 9105.
• Citation: 168 S.E. 882,176 Ga. 592
• Parties: ROWE et ux. v. COLE.
• Court: Georgia Supreme Court

168 S.E. 882

176 Ga. 592

ROWE et ux. v. COLE.

No. 9105.

Supreme Court of Georgia

February 23, 1933

Syllabus by the Court.

In suit to set aside husband's conveyance to wife, refusing charge that husband can prefer wife to whom he owes debt and can convey his property in payment of debt constituting sufficient consideration therefor, although insolvent at time, held error (Civ. Code 1910, § 3224, par. 2).

Where several distinct matters involving fraud are presented, while it is proper to charge general rule applicable to them all specific request which is legal, apt, and precisely adjusted to one of matters and would materially aid jury in applying general principle may also be charged.

Refusing charge that conveyance to wife could not be set aside as fraudulent if wife did not know husband intended to defraud creditors held error, notwithstanding charge given predicated setting aside of conveyance on finding that fraudulent intention was known to "party taking" (Civ. Code 1910, § 3224).

Assignments in grounds not argued in brief will be deemed abandoned.

Charge predicating verdict on certain facts, if not affected by another principle of law "that will be hereinafter stated to you" held misleading, where entire charge contained no reference to such principle of law.

Correct instructions are erroneous when inapplicable.

In suit to set aside husband's conveyance to wife, where uncontradicted testimony showed that wife had made large payments on property conveyed and husband had paid no part thereof, instruction on voluntary conveyances held erroneous (Civ. Code 1910, § 3739, subds. 1, 3, and §§ 3740, 4523, 4532).

1. The court erred in refusing to give in charge to the jury the requested instruction set out in the first special ground of the motion for a new trial. Though the principle of law contained in the request was given in the general charge, the requested instruction was peculiarly applicable to the evidence and to the nature of the transaction under investigation.

2. Where several distinct matters involving fraud are presented to a jury, while it is proper to charge to the jury the general rule applicable to them all, yet if a specific charge be requested which is legal, apt, and precisely adjusted to one of these matters, "it is proper to give the latter also, if it would materially aid the jury in applying the general principle to this one of the several matters for their consideration."

3. Under the principles announced above, the court erred in refusing to instruct the jury in the language of the request set out in the third special ground of the motion for a new trial.

4. The assignments of error in the second and fourth special grounds, not being argued in the brief, will be treated as abandoned.

5. It appears from ground 5 that the court referred to a named result which would ensue as matter of law, if "not affected by another principle of law that will be hereinafter stated to you"; but as it appears from the record that there is in the entire charge no reference to the "principle of law" mentioned by the court, and the jury were not informed what principle of law was in the mind of the court when he stated a conclusion which might lawfully be reached by the jury if not "affected by another principle of law," the charge to which exception is taken was necessarily confusing and misleading.

6. In view of the rulings of this court in the previous appearance of this case (Rowe v. Cole, 171 Ga. 391, 155 S.E 473), and of the testimony of D. M. Cole, the assignments of error based on charges of the court set out in grounds 6 and 7 are without merit.

7. Correct instructions as to the law become erroneous when they are not applicable to the evidence in the case on trial. The issue in this case was whether a deed made by a husband for a wife was made with intent to hinder, delay, or defraud his creditors. Upon inquiry into the subject-matter of the consideration of the deed, it was shown without contradiction that large sums of money were paid by the wife, and in her behalf by her father-in-law and mother, beginning with the original payment on the purchase price; and that though a deed was at first executed to the husband as grantee, title should properly be in the wife, since the husband paid no part of the purchase price. In these circumstances, any instruction to the jury upon the subject of voluntary conveyances, such as is complained of in grounds 8 and 9 was at least confusing, and therefore erroneous.

Error from Superior Court, Gwinnett County; W. W. Stark, Judge.

Suit by D. M. Cole, trustee in bankruptcy of J. E. Rowe, against J E. Rowe and wife. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Reversed.

Refusing charge that conveyance to wife could not be set aside as fraudulent if wife did not know husband intended to defraud creditors held error, notwithstanding charge given predicated setting aside of conveyance on finding that fraudulent intention was known to "party taking" (Civ.Code 1910, § 3224).

This is the second appearance of this case before this court. Rowe v. Cole, 171 Ga. 391, 155 S.E. 473. The proceeding was an action instituted by D. M. Cole, as trustee in bankruptcy of J. E. Rowe, against the latter and his wife Mrs. Mozelle Johnson Rowe, to set aside a deed made by the husband to the wife on January 11, 1926, conveying a house and lot in Buford, Ga. In the prior adjudication a new trial was granted by this court, on account of error in the charge to the jury. Upon the second investigation the identical witnesses testified to substantially the same facts as in the previous trial, the same deeds were introduced in evidence, and a verdict was returned in favor of the plaintiff. Judgment was entered, setting aside the deed, and decreeing title to the property to be in plaintiff, to be administered as assets of the estate of the bankrupt. The defendants moved for a new trial, and excepted to a judgment overruling the motion. At the time the deed was executed J. E. Rowe was insolvent. From October 24, 1911, to January 11, 1926, the legal title to the property was in J. E. Rowe. Winfield Rowe (a brother of J. E. Rowe) and Bonny Cole (son of D. M. Cole) operated as partners the Gwinnett Grocery Company during 1924 and for several years prior thereto, and credit was extended to J. E. Rowe. This firm went out of business in December, 1924, at which time J. E. Rowe was indebted to it $645.11, for which, on November 15, 1924, he executed to the firm his note payable November 25, 1925. This note, with others, was transferred to D. M. Cole about December 15, 1924, as security for money he furnished to pay the balance due by the partnership on a note to a bank.

D. M Cole testified: "Before I purchased that note or took it as collateral, I made investigations as to whether or not Mr. Rowe had any property. I did not make the investigation myself. I got Mr. Liles to come down here and examine the record before they went out of business. *** I wouldn't have had it all if it hadn't been that way on the record. *** I had a conversation with Mr. Rowe, as to who owned that piece of property. He told me he owned it." A. G. Liles testified: "Mr. Cole employed me to examine the titles to this house and lot. It was sometime in 1924, in my recollection. Mr. Cole came to see me and asked me if I knew who owned that property down there, and I told him I didn't, and he got me to come over here and run the records in the clerk's office, and I did that, and I found this deed from Mrs. Tharpe made in 1911 to Mr. Rowe, and I run it and found the title was still in him at that time, and I went back and reported that to Mr. Cole. That was prior to the time when the Gwinnett Grocery Company was dissolved. I wouldn't be certain that it was before the dissolution of the Gwinnett Grocery Company, but I think it was." J. E. Rowe denied having told Cole he owned the property in question, testifying as to this: "Before I signed the note I told Mr. Cole, 'I haven't a thing in the world to pay this with, only my job, and I am going back to my regular job and pay it.' I told him I didn't have any property, and not only told him, but I told his sons in the store out there about three different times." Winfield Rowe testified that he knew Mrs. Rowe had an equity in the property, and that the firm did not extend credit to J. E. Rowe on the faith of his owning it. Mrs. J. E. Rowe testified in part: "My husband had no property at the time we were married. At one time I put $225 in our place at Buford. At the time that property was purchased at Buford I put $225 in it. My husband handled the transaction for me. I know of a loan being made on the property. It seems to me the loan was $850. When we got this $850 it was to be paid back by monthly payments, $11.65 each month. I paid one month, and another party paid the next month. I mean that every other month I would pay $11.60. I kept that up until the property was paid for. Grandfather Rowe, Elmer's father, paid the other $11.65 every other month. I did not know anything of my own knowledge about the way the papers were fixed at that time. Now on this transaction he came down and acted as my agent in getting the papers fixed up, and I put $225 in it, and Grandfather Rowe put $125 in it. I have had improvements made on that property. I built a room to it. Mr. Deaton built the room for me. To have that work done, it cost $375 was the contract. My mother paid $300 on that work, and I paid the rest of it. My husband didn't pay any part of that. He has never paid any part of the purchase-price on this place. *** My husband never did furnish any of the money to pay the taxes on that property. Not at that time I didn't...