Wimberly v. Toney, 8795.

• Decision Date: 13 August 1932
• Docket Number: No. 8795.,8795.
• Citation: 175 Ga. 416,165 S.E. 257
• Parties: WIMBERLY. v. TONEY et al.
• Court: Georgia Supreme Court

175 Ga. 416

165 S.E. 257

WIMBERLY.

v.TONEY et al.

No. 8795.

Supreme Court of Georgia.

Aug. 13, 1932.

Syllabus by the Court.

1. It was not error to charge the jury in this case that a bona fide sale of property by a person, even though he be insolvent at the time of such sale, whereby he receives a valuable consideration for the property, and provided he has no intention to hinder, delay, or defraud his creditors which is known to the grantee, is valid, and cannot be set aside by creditors of the vendor, even though the sale be made to a near relative of the vendor.

2. The charge to which exception is taken in the fifth ground of the motion for a new trial, as confusing and misleading, was not erroneous.

3. The fact that the court submitted to the jury the question as to whether one of named defendants was insolvent, although there was no evidence other than that he was insolvent, was not such an error as would warrant the grant of a new trial, in the circumstances of this case.

4. The court did not err in expressly withdrawing from the jury two incorrect instructions immediately after their utterance. The court's action was eminently proper, and was not in any manner prejudicial to the plaintiff.

5. The assignment of error in the eighth ground of the motion for a new trial is without merit.

6. The court did not err in admitting evidence tending to show the good character of a party to the cause who was charged with fraud and conspiracy. The nature of this charge placed the character of the defendant in issue. Where an effort is made to avoid and annul a sale upon the ground that the contract of sale and purchase was made in the perpetration of a fraud, evidence of the good character of the vendee or of the vendor is admissible to support the bona fides of either in the transaction.

7. Where the "character of the defendant for want of integrity and trustworthiness is put directly in issue by the action brought against him, and from the very nature of the case, and the difficulties surrounding it, that character must constitute his main if not his only defense, entire liberty should be extended to the defendant upon this point."

8. The evidence authorized the jury to find in favor of J. W. Toney.

9. The court did not err in overruling the motion for a new trial.

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Suit by the W. L. Pain Grain Company against J. W. Toney and W. M. Toney, wherein W. P. Wimberly, as trustee in bankruptcy of W. M. Toney, intervened, and was substituted as plaintiff. Judgment for defendants, plaintiff's motion for a new trial was overruled, and he brings error.

Affirmed.

W. L. Fain Grain Company brought suit against W. M. Toney and J. W. Toney, alleging that J. W. Toney was the father of W. M. Toney; that plaintiff sold to W. M. Toney goods as shown by attached statement; that W. M. Toney was then conducting a dairy, and he bought the goods from petitioner for the purpose of operating his dairy business; that W. M. Toney was insolvent about May 15, 1928, and, being urged to make settlement, he transferred to his father approximately 20 head of dairy cattle and certain horses, a pair of mules, and other personal property, the value of which was sufficient to pay the claim of petitioner amounting to $1,098.98, besides interest, in full; that the pretended transfer was void, because it was made for the purpose of hindering, delaying, and defrauding creditors; that, if the property is yet in the possession of the defendant J. W. Toney, the defendant should be required to disclose the nature, amount, and value thereof, to the end that the court may impound it and decree the transfer invalid and the property subject to the payment of the debts of W. M. Toney; that, if J. W. Toney has disposed of the property or placed it beyond the reach of W. M. Toney's creditors, such act renders J. W. Toney liable to petitioner for the market value thereof; that J. W. Toney had ample reason to suspect the purpose of W. M. Toney, and knew of W. M. Toney's intent to hinder, delay, and defraud his creditors, including petitioner, whose debt was in existence at the time of the transfer; and that a conspiracy existed between the defendants to save the property or a part of it for the benefit of W. M. Toney. Petitioner prayed that the pretended transfer be decreed null and void and canceled; that such property as may be found in the hands of J. W. Toney be impounded and subjected to judg-ment; that petitioner have judgment for its debt; that defendants be required to account for their acts and doings with reference to said property; that J. W. Toney be subjected to judgment for the market value of so much of the property as he may have disposed of; and for general relief. W. M. Toney filed no answer. In the answer of J. W. Toney he admitted buying certain cattle and a pair of mules and wagon and a few farm tools from W. M. Toney. He alleged that a greater portion of this property had been bought by W. M. Toney from him and had never been paid for in full; that a portion of the same property purchased by him was subject to outstanding mortgages which he had been forced to pay off; that the difference between the amount due him for the purchase of the property by W. M. Toney and the amount paid for it by him was not equal to $1,098; that there was other property of W. M. Toney, available for the purpose of paying his debts, in his possession at the time and after the transaction in question; that the transactions with W. M. Toney were free from fraud of any kind; that all of respondent's acts were in good faith, and no attempt was made to cover up any transaction; that W. M. Toney had other property than that delivered to defendant, and petitioner had ample time to enforce his claim against it. Conspiracy and all liability for the debt were denied. Wimberly, as trustee in bankruptcy of W. M. Toney, intervened and was substituted as plaintiff, and $3,500 was substituted as the amount sued for instead of $1,098. Upon the trial the court submitted to the jury five questions of fact, which, with the answers returned, were as follows:

"1. Did W. M. Toney dispose of the property involved in the trial of this case for the purpose of hindering, delaying, or defrauding his creditors, as complained of in this suit? Answer: No.

"2. If it was the purpose of said W. M. Toney to put said property beyond the reach of his creditors for the purpose of hindering, delaying, or defrauding his creditors, was such purpose and intention known to his father, J. W. Toney, when he took possession of it? Answer: No.

"3. If it was the purpose of W. M. Toney to put said property beyond the reach of his creditors, as alleged in the petition, for the purpose of hindering, delaying, or defrauding his creditors, did J. W. Toney have reasonable grounds to suspect such purpose, although he did not have actual knowledge of such intention?

"4. What was the reasonable market value of the property taken possession of by J. W. Toney, as complained of in this suit? Answer: $2,600.

"5. (a) Was J. W. Toney a creditor of W. M. Toney? Answer: Yes.

"(b) Was it the purpose of W. M. Toney to prefer his father? Answer: Yes.

"(c) Was that transaction done in good faith on the part of W. M. Toney? Answer: Yes.

"(d) Was the taking of the property at a fair valuation? Answer: Yes.

"(e) Was there any participation of J. W. Toney in any agreement or scheme to defraud any creditors? Answer: No."

Upon this verdict the court entered a judgment and decree decreeing the transfer and conveyance of property from W. M. Toney to J. W. Toney to be legal, valid, and binding. The plaintiff's motion for a new trial was overruled, and he excepted.

Carl T. Hudgins, of Decatur, for plaintiff in error.

B. H. Burgess, of Decatur, for defendants in error.

RUSSELL, C. J. (after stating the foregoing facts).

1. The first special ground of the motion for a new trial complains that the court charged the jury: "I charge you gentlemen that a bona fide sale of property by a person, even if he be insolvent at the time of such sale, whereby he receives valuable consideration for the property, and provided he has no intention to delay or defraud his creditors, which was known to the grantee, is valid and cannot be set aside by creditors of the vendor, even though the sale be made to a near relative of the vendor." This charge, when construed in connection with the charge as a whole, is not subject to the criticism: (a) That the court omitted to charge in connection therewith that the transaction would be void as against creditors if J. W. Toney had reasonable grounds to suspect that the intention of W. M. Toney was to hinder, delay, or defraud his creditors. (b) That the language "even though the sale be made to a near relative" tended to instruct the jury to disregard the close relationship existing between the parties, whereas "the law says that such transactions between near relatives are to be scanned with care, and slight evidence of fraud will be sufficient to set aside transactions between near relatives when the rights of creditors are involved." The court could not properly have charged the language just quoted, without justly subjecting his instruction to the objection that it would have been extremely argumentative. (c) That it was not adjusted to the facts of the case, and that it was prejudicial to the movant, by reason of the fact that J. W. Toney, the...