Tucker v. Talmadge

• Decision Date: 24 September 1938
• Docket Number: 12378.
• Citation: Tucker v. Talmadge, 186 Ga. 798, 198 S.E. 726 (Ga. 1938)
• Parties: TUCKER v. TALMADGE, Governor.
• Court: Georgia Supreme Court

198 S.E. 726

186 Ga. 798

TUCKER v. TALMADGE, Governor.

No. 12378.

Supreme Court of Georgia

September 24, 1938

Error from Superior Court, Walker County; C. H. Porter, Judge.

Proceeding by Eugene Talmadge, Governor, against one Tucker to forfeit a criminal bond, on which defendant was surety. From a judgment denying a claim by defendant's wife, Josie Tucker, to land levied on under execution on forfeiture judgment, she brings error.

Reversed.

Maddox & Griffin, of Rome, for plaintiff in error.

J Ralph Rosser and Rosser & Shaw, all of LaFayette, for defendant in error.

Syllabus OPINION.

JENKINS Justice.

1. 'Every conveyance of real or personal estate, by writing or otherwise, * * * had or made with intention to delay or defraud creditors, and such intention known to the party taking,' is 'fraudulent in law against creditors * * * and as to them null and void. * * * A bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion, shall be valid.' Code, § 28-201(2). 'When a transaction between husband and wife shall be attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair.' Section 53-505; Moore v. Loganville Mercantile Co., 184 Ga. 351(2), 191 S.E. 121, and cit. 'As against creditors, [such] transactions * * * should be closely scanned, and the utmost good faith' must be made to appear. Rountree v. Lathrop, 69 Ga. 757(b); Booher v Worrill, 57 Ga. 235, 228; Shorter v. Methvin, 52 Ga. 225(2).

2. On the trial of the claim by a wife to land levied on as the property of her husband under an execution in a criminal-bond forfeiture in favor of the State against the husband as a surety, which claim the jury determined adversely to the claimant, the court did not err in admitting either the rule nisi and scire facias issued in the forfeiture, with an entry by the sheriff showing service on the husband, or the answer filed by the husband contesting such proceeding, over objection that such evidence was irrelevant and prejudicial, where the deed under attack from the husband to the wife was executed about two weeks after the service on the husband, and where there was testimony, although disputed, that the wife was present at the time of the service.

3. No prejudicial error appears in the admission: (a) Of oral testimony, additional to the admitted documentary evidence, as to the fact and time of the service on the husband, and as to his defense in the forfeiture proceedings, over the objection that there was higher and better evidence, and that such testimony was irrelevant. (b) Of testimony by the husband that the principal in the criminalbond forfeiture was at the husband's home before the husband surrendered him, since, irrespective of its legal admissibility, the claimant wife herself testified to the same effect.

4. The onus being on the claimant wife to show the fairness of the transaction and deed under which she claimed, as the court correctly charged, and she having assumed this burden and accepted the right to open and conclude the argument, it was not error, in the absence of request, for the court to fail to charge the jury further as to such burden, or as to any shift in the burden of introducing evidence. Hawkins v. Davie, 136 Ga. 550, 552, 71 S.E. 873; Small v. Williams, 87 Ga. 681(6), 682, 13 S.E. 589; Askew v. Amos, 147 Ga. 613(5), 95 S.E. 5; Georgia, Fla. & Ala. Ry. Co. v. Summer, 133 Ga. 134, 65 S.E. 381; Atlantic & B. Ry. Co. v. Summer, 134 Ga. 673(10), 68 S.E. 593; Hogg v. Louisville & N. R. Co., 33 Ga.App. 773(3), 774, 127 S.E. 830, and cit.

5. The court charged: 'You will have all of these papers out with you in your jury-room, the execution and all entries thereon, and the claim and all the papers connected with this case. You may refer to each and all of them as often as you may see fit, read them, any or all of them for the information contained therein.' This instruction was not subject to the exception that it tended to cause the jury to believe to be true the entry of the...