Strickland v. Jones

CourtSupreme Court of Georgia
Writing for the CourtFISH
Citation62 S.E. 322,131 Ga. 409
PartiesSTRICKLAND. v. JONES.
Decision Date19 August 1908

62 S.E. 322
131 Ga. 409

STRICKLAND.
v.
JONES.

Supreme Court of Georgia.

Aug. 19, 1908.


1. Fraudulent Conveyances — Husband and Wife—Burden of Proof.

It was not error to charge: "Whenever a transaction is between husband and wife, and creditors attack it, then the law throws the onus —that is the burden of proof—on the wife, when she claims the property purchased or received

[62 S.E. 323]

from her husband, to make a fair showing of the whole transaction."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, § 802.]

2. Same—Action to Vacate—Instructions.

The charge of the court upon the question as to the existence of fraud in the conveyance by the husband to the wife of the lands upon which the plaintiffs' attachment against the husband was subsequently levied, when fairly considered as a whole, did not put the burden upon the wife, as the claimant, of showing that her husband, the defendant in the execution, had no fraudulent intent in conveying the property in question to her; nor was it justly subject to exception upon the ground that it failed to instruct the jury that fraud by the husband in this transaction with his wife, unknown to her, and which she had no reasonable ground to suspect, would not be sufficient to invalidate the deed which he made to her.

3. Same—Claims Barred by Limitations.

It was not error to instruct the jury that, in passing upon the question whether there was fraud in the transaction between the husband and the wife, the question whether the debt, in payment of which the wife claimed that the husband conveyed the property in controversy to her, was barred by the statute of limitations was a circumstance which they might consider.

4. Attachment — Levy —Claim — Title of Third Person.

A claimant cannot rely upon title acquired from a third person after the levy of the execution and the filing of the claim.

5. Fraudulent Conveyances—Trial — Verdict—Vacation.

Even if a claimant, who admits possession in the defendant in fi. fa. at the time of the levy, and assumes the burden of proof, upon showing some interest in the property, can set up that the defendant in fi. fa. had, before the levy, conveyed the property to a third person to secure a debt, taking bond for reconveyance on payment, and that the defendant has not been revested with the title, yet when the only interest which such a claimant sought to assert was by virtue of a deed from the defendant in fi. fa., and this was attacked on the ground that it was a fraudulent conveyance and void against creditors, after verdict finding the property subject to the levy, the verdict will not be set aside on a general ground of a motion for a new trial, alleging that the verdict was contrary to the evidence.

6. Attachment — Claim—Rights of Claimant.

Where an attachment, sued out under the fraudulent debtor's act, is levied upon land as the property of the defendant in execution, and such property is claimed by another person, the question whether the right of the attaching creditor to sue out the attachment had become barred by the statute of limitations at the time he proceeded to do so is not one which can be raised by the claimant upon the trial of the claim case. This is true although it appears from the evidence that the claimant relies for title upon a deed from the defendant in the attachment proceeding, which was alleged in the attachment affidavit to have been executed for the purpose of defeating and defrauding the attaching creditor.

7. Same—Evidence.

The evidence was sufficient to authorize the jury to find the property subject, and there was no error in overruling the motion for a new trial.

(Syllabus by the Cout.)

Error from Superior Court, Carroll County; R. W. Freeman, Judge.

Action by W. T. Jones, as survivor of Jeth ro Jones & Son, against T. J. Strickland, in which F. E. Strickland, wife of T. J. Strickland, filed claim to certain attached real estate. A verdict was rendered finding the property subject, and from an order denying claimant's motion for a new trial, she brings error, and plaintiff filed a cross-bill of exceptions. Affirmed on main bill and cross-bill dismissed.

W. F. Brown and W. C. Hodnett, for plaintiff in error.

R. D. Jackson and S. Holderness, for defendant in error.

FISH, C. J. Jethro Jones & Son sued out an attachment against T. J. Strickland as a fraudulent debtor, alleging in the petition, verified by a member of the firm on November 30, 1898, that the defendant was indebted to them in a named amount upon certain described promissory notes, upon which suit was then pending in the superior court; that, for the purpose of defeating and defrauding them, he had executed a deed conveying certain land to his wife, which he had previously agreed to convey to them as security for such indebtedness; that he had also executed fraudulent mortgages, transfers, and assignments of other property of his, and was threatening to dispose of all the balance of his property, all for the purpose of defeating and defrauding the plaintiffs. The attachment was issued December 1, 1898; and on December 3, 1898, it was levied upon several tracts of land as the property of the defendant, to which Mrs. F. E. Strickland, his wife, interposed a claim. Plaintiffs filed a declaration in attachment in the superior court. While the common-law and attachment suits were pending, the defendant died, and the administrator upon his estate was made a party defendant in his stead. By an order of court the attachment case and the common-law action were consolidated and tried together, and upon the trial a judgment was rendered in favor of the plaintiffs for the amount found to be due them by an auditor, to whom the suit upon the notes had been referred. Subsequently the claim case came on for trial, and upon such trial the claimant admitted that, at the time of the levy of the attachment, the defendant was in possession of the property levied upon, and assumed the...

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22 practice notes
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...504, 146 S.E. 414 (1), and cases cited; Virginia-Carolina Chemical Co. v. Hunter, 94 S.C. 65, 68, 69, 77 S.E. 751; Strickland v. Jones, 131 Ga. 409, 62 S.E. 322, 323, 324; Tucker v. Weathersbee, 98 S.C. 402, 406, 82 S.E. 638; Gray v. Collins, 139 Ga. 776, 78 S.E. 127, 128, 129; Younger v. M......
  • Cotton States Fertilizer Co v. Childs, No. 9856.
    • United States
    • Supreme Court of Georgia
    • May 24, 1934
    ...presumed, and he either fails to answer altogether or makes an evasive answer, the charge is to bo taken as true." In Strickland v. Jones, 131 Ga. 409 (3), 62 S. E. 322, it was held that the fact that the alleged debt was barred by the statute of limitations was a circumstance which could b......
  • Brazell v. Hearn, (No. 15716.)
    • United States
    • United States Court of Appeals (Georgia)
    • February 14, 1925
    ...is a personal one, which the defendant may exercise, or waive by failing to plead or claim at the proper time. Strickland v. Jones, 131 Ga. 409, 415, 62 S. E. 322; Warren v. Powell, 122 Ga. 4, 49 S. E. 730. It is also the rule that where the court states a contention, not raised by the plea......
  • State Banking Co v. Miller, No. 12137.
    • United States
    • Supreme Court of Georgia
    • March 8, 1938
    ...her to make a fair showing about the whole transaction. Code, § 53-505; Richardson v. Subers, 82 Ga. 427, 9 S.E. 172; Strickland v. Jones, 131 Ga. 409, 62 S. E. 322; Gill v. Willingham, 156 Ga. 728 (4), 120 S.E. 108. The mere introduction of a conveyance from the husband to the wife would n......
  • Request a trial to view additional results
22 cases
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...504, 146 S.E. 414 (1), and cases cited; Virginia-Carolina Chemical Co. v. Hunter, 94 S.C. 65, 68, 69, 77 S.E. 751; Strickland v. Jones, 131 Ga. 409, 62 S.E. 322, 323, 324; Tucker v. Weathersbee, 98 S.C. 402, 406, 82 S.E. 638; Gray v. Collins, 139 Ga. 776, 78 S.E. 127, 128, 129; Younger v. M......
  • Cotton States Fertilizer Co v. Childs, No. 9856.
    • United States
    • Supreme Court of Georgia
    • May 24, 1934
    ...presumed, and he either fails to answer altogether or makes an evasive answer, the charge is to bo taken as true." In Strickland v. Jones, 131 Ga. 409 (3), 62 S. E. 322, it was held that the fact that the alleged debt was barred by the statute of limitations was a circumstance which could b......
  • Brazell v. Hearn, (No. 15716.)
    • United States
    • United States Court of Appeals (Georgia)
    • February 14, 1925
    ...is a personal one, which the defendant may exercise, or waive by failing to plead or claim at the proper time. Strickland v. Jones, 131 Ga. 409, 415, 62 S. E. 322; Warren v. Powell, 122 Ga. 4, 49 S. E. 730. It is also the rule that where the court states a contention, not raised by the plea......
  • State Banking Co v. Miller, No. 12137.
    • United States
    • Supreme Court of Georgia
    • March 8, 1938
    ...her to make a fair showing about the whole transaction. Code, § 53-505; Richardson v. Subers, 82 Ga. 427, 9 S.E. 172; Strickland v. Jones, 131 Ga. 409, 62 S. E. 322; Gill v. Willingham, 156 Ga. 728 (4), 120 S.E. 108. The mere introduction of a conveyance from the husband to the wife would n......
  • Request a trial to view additional results

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