Thompson v. Feagin

• Decision Date: 31 January 1878
• Citation: 60 Ga. 82
• Parties: Thompson. v. Feagin.
• Court: Georgia Supreme Court

60 Ga. 82

Thompson. v. Feagin.

Supreme Court of the State of Georgia

(January Term, 1878.)

New trial. Husband and wife. Fraud. Debtor and creditor. Practice in the Supreme Court. Before Judge Crawford. Harris Superior Court. April Term, 1877. Reported in the opinion.

*A. A. Dozier; James M. MobeEy, for plaintiff in error.

Peabody & Brannon, for defendant.

Jackson, Judge.

Mrs. Feagin held a judgment against the husband of Mrs. Thompson, which was levied on certain lands in his possession, to which the wife claimed title. On the trial, the jury found the property subject, with ten per cent. damages, because the claim was, in their opinion, interposed for delay only.

Mrs. Thompson moved for a new trial on the grounds of newly discovered evidence, three errors in the charge of the court, and because the verdict was contrary to law and against the decided weight of the evidence. It was refused, and she excepted.

1. There is nothing in the ground that new evidence has been discovered, it being verified by no affidavit of any witness, and neither the party nor her counsel having filed any affidavit of its truth, or of their ignorance of the alleged new fact at the time of the trial.

2. The first assignment of error is to the charge contained in the third paragraph thereof, which is as follows:

"Mrs. Feagin denies, however, that there was any valuable consideration at all paid, and insists, also, that the sale, if made was not bona fide, but made with the intent to defraud the creditors of Thompson, which intent was known to Mrs. Thompson, and, therefore, she being a creditor, it was void as to her. She further says that it was done to delay her and other creditors in the collection of their debts, and that this intention was known to Mrs. Thompson. If the testimony shows this to be the truth, then the title, whilst it might be good as between Thompson and wife, it would not be good as against creditors, and the land would be subject."

We see no error in this charge, under the facts of this *case, and read in the light of the context of the charge complained of. The court had just instructed the jury that if Mrs. Thompson bought the land from her husband, bona fide and for a valuable consideration, whether such consideration consisted of antecedent indebtedness from him to her, or of cash paid, then the land was not subject; and then went on to say that Mrs. Feagin denied this, both as to the value of the consideration and the good faith of the transaction; that full value was not paid, and good faith was not shown, but the truth was that the thing was done to defraud and delay the creditors of the husband; and the judge told the jury if they believed this to be the truth, and Mrs. Thompson knew it, then the land was subject, having just before told them that if she bought for value, and knew nothing of intent to defraud or delay, then it was not subject. Mrs. Thompson held under her husband, her deed was from him, and the issue was this: was that deed for value, and made in good faith, or was it got up with intent to defraud or delay creditors? The charge seems to us fully in accordance with sections 1952 and 1953 of the Code, construed together.

3. The next paragraph complained of is the 6th, which is as follows: "Transactions between husband and wife, whereby creditors are likely to suffer, arc always to be scanned closely to test the bona fides of the parties."

The principle thus announced has been ruled by this court in language almost identical with that employed in the paragraph excepted to.

4. The next paragraph excepted to is the 9th, which is as follows:

"You may look to the fact that the law requires deeds to be recorded, and the time when, and if the testimony shows that the deed from Thompson to his wife was made September 2, 1874, or any other time, then, when was it recorded. You may look at the date of the judgment, the time of the sale, if made, as well as to the time when Mrs. Thompsongave notice of her title by having it. put on record, and if *not within twelve months, has she satisfactorily explained notice. When you shall have reviewed the evidence, and applied the law as given you in charge, you will say by your verdict whether the land is subject to the fi. fa.; and if you so find, then so say; but if you find it not subject, then so say."

This whole paragraph is excepted to as one error. It is not specified wherein this error is. What part is wrong? Some of it certainly is, undisputably, law; and, as the whole cannot be pronounced erroneous, under the rulings of this court— reaffirmed at this term in the case of Saulsbury, Respess & Co. v. Wimberly, not yet reported—this court will not hunt up errors in a charge which are not specially pointed out by the party complaining of...