Stonecypher v. Elliott

• Decision Date: 16 November 1935
• Docket Number: 10776.
• Citation: 182 S.E. 587,181 Ga. 438
• Parties: STONECYPHER v. ELLIOTT.
• Court: Georgia Supreme Court

182 S.E. 587

181 Ga. 438

STONECYPHER v. ELLIOTT.

No. 10776.

Supreme Court of Georgia

November 16, 1935

Syllabus by Editorial Staff.

Special grounds complaining of admission of allegedly immaterial and irrelevant evidence held insufficient to show cause for new trial, where not alleging that evidence was hurtful to movant.

Charge that plaintiff in execution contended that conveyance under which claimant claimed property levied on was fraudulent held authorized, although no equitable amendment had been filed by plaintiff in execution in aid of her levy.

In claim case wherein claimant relied on conveyance from defendant in execution, her husband, in consideration of his debt to claimant, charge that conveyance by husband to wife of property in value grossly in excess of amount due wife will be set aside held unauthorized by evidence.

In claim case charge that conveyance to claimant from defendant in execution, her husband, would be valid under described circumstances, provided husband was not insolvent at the time, was erroneous as tantamount to directing verdict against claimant, in view of admitted insolvency of husband and was not rendered harmless by previous correct charge that bona fide transaction on valuable consideration and without notice or ground for reasonable suspicion shall be valid (Code 1933, § 28-201, par. 2).

Error from Superior Court, Rabun County; B. P. Gaillard, Jr. Judge.

Execution proceeding by Mrs. George Elliott, wherein Mrs. Mollie Stonecypher was claimant. Judgment for plaintiff in execution, claimant's motion for a new trial was overruled, and claimant brings error.

Reversed.

R. C Ramey, of Clayton, and Robert McMillan, of Clarkesville, for plaintiff in error.

Holden & Smith, of Clayton, Bynum & Frankum and J. E. Frankum, of Clarkesville, and Thad L. Bynum, of Clayton, for defendant in error.

Syllabus OPINION.

RUSSELL Chief Justice.

An execution based on a judgment in favor of Mrs. George Elliott against Bryant Hill, as principal, and J. R. Stonecypher, as security, was levied on a house and lot as the property of Stonecypher. Mrs. Mollie Stonecypher, wife of J. R., filed a statutory claim to the property levied on. Upon the trial of the issue thus made, the jury found in favor of the plaintiff in fi. fa. The claimant made a motion for a new trial, which was overruled, and she excepted. The plaintiff in fi. fa. introduced in evidence three deeds executed in October and November, 1932, by J. R. Stonecypher; one to his wife, one to a brother, and one to a daughter, conveying property other than that under levy in this case. The attorney who represented the plaintiff in fi. fa. in obtaining the judgment involved in this case testified that he served notice of intention to file suit on the defendant J. R. Stonecypher, personally, a few days before the deeds were executed by Stonecypher, and that Stonecypher said, "it looked like he would have to do something about it." Other attorneys testified that they held for collection notes against Stonecypher as indorser, and that they also served him with notice of intention to sue, shortly prior to the execution of the deeds in question. The husband of the plaintiff in fi. fa. testified that he made the loan for his wife to Bryant Hill on the indorsement of J. R. Stonecypher, and that the loan was made on the faith of Stonecypher's ownership of the property levied on, and of other property.

The claimant introduced in evidence the deed under which she claimed title to the property levied on. It was dated October 26, 1932, recorded the day thereafter, and recited a consideration of $1,881.50. J. R. Stonecypher testified: "At the time I made this deed to my wife, the consideration was for money that I owed her, and the deed that I made her represented all that I owed her, although the property wasn't worth what I owed her, and she would be glad to get the money today. I did not make that deed for the purpose of defrauding any of my creditors, but it was made in payment of a debt that I owed her at that time. * * * My wife did not know anything about me being on a note for Bryant Hill to Mrs. George Elliott, and she did not know about it at the time I made her the deed. * * * When I made the deed to my daughter, Bonnie, and the deed to my brother, Bart, and the deed to my wife on the 26th of October, 1932, that left me without anything, and I was and am absolutely insolvent, haven't got anything left." The claimant testified: "When my husband gave me this deed I never paid him any cash, but I paid him the amount stated in the deed for the land, which was something like $1800. I paid him cash $500 at the start, about thirty years ago, and the interest amounted to the rest. At that time he didn't own this land in question, but we bought some land over in Burton, and I loaned him $500 to help pay for it. I don't know as we had any special contract about how he was to pay me back. * * * We got this property at Burton about thirty years ago. * * * The title to that property in Burton was in him. He had title to all the property all the time; and when he sold his property at Burton and bought this home place at Clayton, he took title in his name, and I never asked him for what he owed me then. Besides the $500 I loaned my husband thirty years ago, I loaned him five hundred more later on, from some money that came to me out of my father's estate."

Grounds 4, 5, and 6 of the motion for new trial assign error on the...