Sims v. Albea
| Decision Date | 13 May 1884 |
| Citation | 72 Ga. 751 |
| Parties | SIMS et al. v. ALBEA, sheriff, et al.; DUBOSE et al. v. BANK OF WASHINGTON et al. |
| Court | Georgia Supreme Court |
February Term, 1884.
1. Where a fi. fa. was levied on property which had been conveyed voluntarily by a husband to his wife, and on the trial of a claim interposed thereto, a compromise was effected, and a verdict rendered by agreement, finding some of the property subject and the balance not subject, and a fund was raised from that found subject, the moving fi fa. had a lien thereon, and could take the same, unless other claimants of the fund could show an equal or superior lien upon it.
2. The holders of fi. fas. who took no part in the claim case or in the compromise effected therein, can obtain no benefit therefrom. If they had a lien already, it was not displaced; but if they had none before, a lien was not thereby created in their favor.
( a. ) One who became a creditor of the husband after the actual record of a voluntary conveyance from him to his wife, and did not reduce his claim to judgment until several years thereafter, had no lien on the property or a fund arising therefrom.
3. A voluntary settlement on the wife by her husband, not recorded in three months, would be void as to a creditor who credited the husband before the actual recording of the settlement provided that the credit was based on that property.
4. Where one creditor, in order to bring a fund into court abandoned a claim which he had on other property, equity will not permit another creditor, who has a claim on the money and also on the property relinquished, to take the money, but will remand him to the property, it being accessible to him especially so, where he stood by, and took no part in the fight which resulted in a compromise verdict under which the fund was brought into court.
( a. ) This case differs from 8 Ga. 194; 21 Id., 207; 27 Id., 47; 67 Id., 146.
Liens. Judgments. Debtor and Creditor. Husband and Wife. Before Judge POTTLE. Wilkes Superior Court. May Term, 1883.
Sims & Company, Franklin and the Bank of Washington, who were judgment creditors of B. J. Jordan, ruled the sheriff for a fund in his hands arising from the sale of certain property as belonging to Jordan. The sheriff answered that he had in hand $3,740.00 arising from a sale under three county court fi. fas. in favor of Sims & Company, and three superior court fi. fas. respectively in favor of DuBose, Fortson and M. A. Simpson, who also were claiming the fund. They were made parties respondent to the rule, as also were W. W. Simpson and R. A. Simpson.
The evidence showed, in brief, as follows: Sims & Company's judgments were obtained July 11, 1881; Franklin's, July 11, 1881; Bank of Washington's, November 21, 1881; and the fi. fas. issued under these judgments were all levied on the property sold, and those of Sims & Company participated in the sale. DuBose's judgment was obtained May 2, 1882; Fortson's, May 1, 1882; M. A. Simpson's, May 2, 1882; W. W. Simpson's, November 21, 1881; R. A. Simpson's, November 21, 1881. All of these were levied on the property sold, and also on the other property included in the deed of gift mentioned below. The property was sold as Jordan's, and he had returned it for taxes since the date of the deed to his wife and children. Jordan made a deed of gift to his wife and children, covering the property sold and other property. This was dated August 19, 1877, and recorded August 19, 1878. The debt to Sims & Company was made in 1880 and 1881, principally in 1880, and Sims testified that he did not know of the deed of gift; the debt to the Bank of Washington was made February 2, 1878, before the deed was recorded; Fortson's debt was made prior to the execution of the deed; the debts to the Simpsons between its execution and record; and that to DuBose, March 4, 1880, after the record of the deed. The fi. fas. of contestants were levied on the property, and Mrs. Jordan and children interposed a claim. Contestants attacked the deed, on the grounds respectively that the claim of Fortson was older than the deed; that the deed was not recorded in three months, and that it was fraudulent and void as to creditors. A mistrial was had; and when the case again came on for a trial, a compromise was effected, by which an agreed verdict was rendered, finding the property sold subject and the other property not subject.
Before the sheriff's sale, DuBose, Fortson and M. A. Simpson filed a bill to enjoin the sheriff and Sims & Company from selling under the fi. fas. of the latter; but the injunction was refused, and the parties remanded to assert their rights and equities by rule to distribute the fund as under a bill in equity.
At the trial in May, 1883, it was admitted that Jordan was insolvent.
The jury found for the contestants. Movants moved for a new trial, on the following among other grounds:
(1.) Because the verdict was contrary to law, evidence and the charge of the court.
(2.) Because the court charged as follows:
(3.) Because the court charged as follows: " If you believe that the verdict taken, as it is admitted was (done) by consent, was the result of compromise by which Mrs. Jordan surrendered a portion of the property covered by the deed, and was not intended to mean that on the issue, the deed of 1877 was made to defraud creditors, then the plaintiffs had no lien on the property and no lien on the fund."
(4.) Because the court refused the following request: " If Sims & Company, Bank of Washington, Georgia, and A. Franklin have shown any of the badges of fraud in connection with this deed, then the presumption is the deed was void and fraudulent as to them, and the burden of proof is on Miss DuBose, Simpson and Fortson, the contestants, to show that the deed was not fraudulent and void as to Sims & Company, Bank of Washington, Georgia, and A. Franklin; and unless said DuBose, Simpson and Fortson have overcome this presumption, by showing that the deed was not fraudulent and void as to Sims & Company, Bank of Washington, Georgia, and A. Franklin, then said Sims & Company, Bank of Washington, Georgia, and A. Franklin, having the oldest judgments, are entitled to be paid first."
(5.) Because the court refused the following request: " If Sims & Company, the Bank of Washington, Georgia, and A. Franklin have shown any of the badges of fraud, such as indebtedness on the part of Jordan at the time of making deed, secrecy on his part, failure to record the deed in three months, it raises the presumption that the deed was fraudulent and void, and makes a prima facie case in their favor, and unless DuBose, Simpson and Fortson rebut this presumption by proof, then Sims & Company, Bank of Washington, Georgia, and A. Franklin are entitled to be paid first, having the oldest judgments, because no title ever passed out of Jordan if the deed was fraudulent and void."
(6.) Because the court refused the following request: " It is admitted that DuBose's debt is younger than the record of the deed, and that Sims & Company's and Franklin's are also younger; then they stand upon the same footing as to the deed; but Sims & Company's and Franklin's judgments being older than DuBose's, are entitled to be paid first out of the property sold."
The court refused the motion as to Sims & Company and Franklin, and granted it as to the bank. Sims & Company and Franklin excepted to the refusal, and DuBose et al. excepted to the grant of the new trial as to the bank.
SIMS & SHUBRICK; F. H. COLLEY, for Sims & Company, the Bank of Washington et al.
R. TOOMBS; HARDEMAN & IRVIN; W. H. TOOMBS, for Albea, sheriff, DuBose et al.
This case arose on the claim of two sets of creditors of Jordan, the defendant in execution, to a fund in court from the sale of certain property of said Jordan. The issue between them was submitted to a jury under the charge of the court. The jury found for the defendants to that issue, made on the answer of the sheriff, and the movants of the rule made a motion for a new trial. This motion was denied to all the movants except the Bank of Washington; the other movants excepted to that denial, and the defendants, in another bill of exceptions, except to the grant of the new trial to the bank. Both writs of error were argued together here, and will be disposed of in this opinion.
The fund in controversy arose out of a portion of the property of Jordan, which was found subject to defendants' executions under a consent verdict, in which certain other property of Jordan was found not subject.
The case which resulted in this compromise verdict was made by levy upon all of Jordan's property by defendants to this rule and the claim thereof by Mrs Jordan and family, under a voluntary conveyance to her, and the issue was fraud or no fraud in that conveyance. All the property was covered by this deed. On the first trial, there was no verdict, and the court ordered an entry of a mistrial. On the next trial, the case was compromised, and the compromise, by agreement,...
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