Wilson v. Ward

• Decision Date: 02 September 1919
• Docket Number: 1151.
• Citation: 100 S.E. 205,149 Ga. 325
• Parties: WILSON ET AL. v. WARD.
• Court: Georgia Supreme Court

100 S.E. 205

149 Ga. 325

WILSON ET AL. v. WARD.

No. 1151.

Supreme Court of Georgia

September 2, 1919

Syllabus by the Court.

The petition in this case was subject to the grounds of demurrer complaining that the petition was multifarious, and did not allege grounds for ancillary equitable relief, and that the court was without jurisdiction as to certain of the defendants.

Additional Syllabus by Editorial Staff.

Plaintiff as transferee of notes of an insolvent bank, by suing on such notes, ratified the contracts out of which they arose.

In order to obtain ancillary equitable relief against transfers as in fraud of creditors, plaintiff must be a judgment creditor, or be entitled to obtain a judgment giving a lien upon the property in the same action.

Error from Superior Court, Crisp County; D. A. R. Crum, Judge.

Suit by J. A. Ward against J. A. Wilson and others. Separate orders were taken overruling demurrers to the petition and defendants bring error. Reversed.

Petition in action by transferee of insolvent bank for money judgments against each of several obligors on notes to bank, to cancel conveyances by defendants as in fraud of plaintiff's rights, to restrain grantees from conveying or incumbering property, and for general relief, which showed no common right or interest in any question between all the parties as ground for uniting the several claims in one action, was multifarious, under Civ.Code 1910, § 5515, for misjoinder of causes of action for money judgments.

In an equitable suit instituted in Crisp county the petition as amended, considered in connection with certain exhibits alleged the following in substance:

The Farmers' State Bank, a corporation of Crisp county, being insolvent, was placed in the hands of a receiver on March 15 1915. By order of the court the receiver was directed, upon payment of 50 per cent. of the outstanding deposits of the bank and obtainment of the consent of all the depositors, to sell and convey unto the plaintiff all the personal property of every description belonging to the bank. The conditions named in the order having been complied with, the receiver duly executed a transfer of the property, in pursuance of the order, on January 3, 1917; and the plaintiff thereby became transferee of the choses in action hereinafter mentioned, and as such transferee complains. On separate designated dates shortly before the appointment of the receiver, J. A. Wilson, of Crisp county, executed two several promissory notes for stated amounts, payable respectively to W. D. Wilson & Bro. Company (a firm composed of W. D. Wilson, J. A. Wilson, and Clyde Wilson) and the Farmers' State Bank, upon which J. A. Wilson is now indebted to plaintiff as transferee. On separate designated dates shortly before the appointment of the receiver, the firm of W. D. Wilson & Bro. Company, above mentioned, executed several promissory notes for stated amounts, payable respectively to the Farmers' State Bank, to W. D. Wilson, and to their own order, duly indorsed by them, upon which notes they are now indebted to plaintiff. On May 1, 1914, Wilson-Roberts Company, a firm composed of W. D. Wilson, J. A. Wilson, Clyde Wilson, and J. A. Roberts, executed a promissory note for a stated amount payable to the Farmers' State Bank, upon which note the makers are now indebted to plaintiff as transferee. On December 31, 1913, and March 4, 1914, respectively, R. L. Wilson, of Bibb county, executed two promissory notes for stated amounts, payable respectively to the Farmers' State Bank and to J. F. Calhoun, upon which notes the maker is now indebted to petitioner as transferee. At the dates of the execution of the several promissory notes J. A. Wilson was the president of the Farmers' State Bank. In July next after the appointment of the receiver, and on a subsequent stated date, J. A. Wilson, being insolvent, executed two deeds, purporting to convey separate parcels of land to R. L. Wilson. On May 15, 1914, July 1, 1915, February 15, 1916, and April 11, 1916, R. L. Wilson, being at the time insolvent, executed separate deeds purporting to convey described real estate to George Miller, to Crisp Hardware Company (of which J. A. Wilson was manager), to Mrs. Sallie B. Wilson (wife of R. L. Wilson), of Bibb county, and to Macon Trust Company, of Bibb county, of which R. L. Wilson was president. On April 23, 1916, Sallie B. Wilson executed a deed purporting to convey to the Crisp Hardware Company some of the lots included in the above-mentioned deed from R. L. Wilson to herself. W. D. Wilson & Bro. Company, the Wilson-Roberts Company, and the several members of each firm are insolvent. The several conveyances above mentioned were void on account of having been made without consideration and as part of a conspiracy to enable R. L. Wilson and J. A. Wilson to hinder, delay, and defraud creditors of each of them. On the subject of conspiracy it is specially alleged:

"Said conspiracy consisted in negotiating said evidences of indebtedness with the said Farmers' State Bank by common consent of all parties interested in each of said obligations, and at the instance and through manipulation of the said R. L. Wilson, and with knowledge of each other, procuring thereon money and other thing of value from said Farmers' State Bank, without giving therefor any security, and done with the fraudulent intent to resist and defeat the payment of the same by hiding, conveying, and concealing the live and available assets of the makers of said obligations, in the manner herein described, and in the conveyances hereinbefore described; and said conspiracy consisted further in so shifting the titles to the properties herein described as to clear all of said property out of the said J. A. Wilson and the said R. L. Wilson, and with fraudulent intent to defeat the collection of their several obligations hereinbefore described, and to hinder, delay, and defraud the creditors of the said Farmers' State Bank and this petitioner. The transfers of property alleged to have been made were made subsequent to the creation and during the existence of the indebtedness set forth, the notes and obligations set out, and which do not themselves antedate the transfers complained of, being, as petitioner is informed and believes, in renewal of indebtedness previously existing and obligations previously given to the said Farmers' State Bank. The fraudulent character of said acts and transfers was well known

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