Lamkin v. Clary , 1898 Ga. LEXIS 216 ( 1898 )

Simmons, C. J.

1. It is the duty of the sheriff to state in his entry of levy who was in possession of the property at the time of the levy, and his entry is evidence upon that point. Williams & Co. v. Hart, 65 Ga. 201. In a claim case where the ■entry of the sheriff upon the execution fails to state who was in possession, and a controversy arises as to the opening and ■conclusion of the argument, it becomes the duty of the court to inquire first as to the fact of possession; and if upon this pre liminary investigation it appear that the defendant in fi. fa. was in possession at the time of the levy, the burden of proof would be cast upon the claimant and'he would be entitled to "the opening and conclusion. Bartlett v. Russell, 41 Ga. 196; Primrose v. Browning, 59 Ga. 69; Williams v. Hart, supra. It was therefore error for the trial judge, after making the preliminary investigation and ascertaining that the defendant in fi. fa. was in possession at the time of the levy, to refuse the opening and conclusion to the claimant, although the latter had declined to admit the possession of the defendant in fi. fa.

2. It appears from the record that Lamkin, the defendant in ■fi. fa., married prior to the passage of the act of 1866, commonly known as the “married woman’s act.” After the passage of that act, his wife was entitled to money and other property as .an inheritance from the estate of her father. Lamkin, the husband, received this money and property; and the question which arose in the present case was, whether he had received ■this property as his own by virtue of his marital rights, or whether he had waived such rights and received it for his wife. Under the law, as construed by this court, his marital rights .attached to the property and he could have received it as his ■own. The law, however, did not compel him so to receive it, "but authorized him to waive his rights and to allow it to go directly to his wife. It was therefore important for the jury to determine in which capacity he received this property. Lamkin ■claimed that he had waived his marital rights and had received the property as his wife’s, but had used it for his own benefit, .and that in order to repay her for it he made her a deed to the land levied upon as his. The plaintiff in fi. fa. contended that Lamkin received as his own the money coming to his wife from her father’s estate, and that the deed made by him to his wife was for the purpose of delaying, hindering, and defrauding «creditors, was without consideration, and was fraudulent and void. To sustain his theory, Lamkin offered to prove that, before the creation of the debt which was the foundation of the judgment and execution against him, he made to his wife, in settlement of this claim of hers upon him, a “verbal gift” of the land. This was objected to by the plaintiff in fi. fa., and excluded by the court. ' Claimant assigns this .ruling as error.

Where a conveyance is attacked for fraud, any evidence tending to show fraud upon the part of the grantor is admissible, and we do not see why the contrary proposition is not true, i. e., that where the grantor and grantee claim that the transaction was bona fide and not made for the purpose of defrauding or delaying creditors, any evidence tending to show the bona fides of the transaction is likewise admissible. The force and effect of such evidence would be for the jury to determine. Here, the claimant proposed to show that, prior to the time of the creation of the debt which is sought to be enforced against the land, he recognized the validity of his wife’s claim, and bona fide made her a verbal gift of the land. Of course, such a gift is not in law a transfer of the title from him to his wifer because the law requires the transfer of title to land to be in writing; but would not such a transaction tend to show that he had waived his marital rights to the property and recognized it as his wife’s, and that he had sought to repay her by this gift of the land ? It seems to us that such testimony would have some probative force in the trial of such an issue. If the jury should find from this and other testimony that this attempted conveyance of the land was a real and bona fide transaction between the husband and the wife, and that it was subsequently consummated by a written instrument, they would be authorized to find in favor of the claimant although the written title was made after the suit upon the note had been filed. We think, therefore, that the court erred in excluding this evidence.

3. The claimant requested the court to charge section 2697 of the Civil Code, which provides that a debtor may prefer one creditor to another, and may bona fide give a lien by mortgage, or sell in payment of the debt. The court gave this section in charge, but added thereto a portion of the second paragraph of section 2695, as a qualification or explanation of section 2697, by saying: “provided it is done in good faith, and not for the purpose of hindering or defrauding creditors.” We think that, having attempted an explanation of the section he was requested to charge, he should have further stated that in'order to render the conveyance void, where it was made in payment of a valid debt, the wife must have known of such purpose or have had reasonable grounds to suspect the existence of the same. Under the charge as given, if the jury believed that Lamkin made the deed for the purpose of delaying and defrauding his creditors, they were compelled to find against the claimant, Mrs. Lamkin, although the deed may have been for a valuable consideration and she may have had no notice or reasonable ground to suspect that it -was made for the purpose of delaying or defrauding her husband’s creditors. There is no evidence in the record that she knew of such an intention, or that there were reasonable grounds to cause her to suspect that her husband was making the deed for such purpose. One may make a deed for the purpose of defrauding his creditors; and the grantee may be perfectly innocent and entirely without notice in accepting such deed in payment of a debt due him. In such case, the deed would be valid in the hands of the innocent grantee, if there was nothing which should have put him on notice of his grantor’s fraudulent intent. So, if Lamkin intended to defraud his creditors and made the deed for that purpose, and Mrs. Lamkin took it as payment of a bona fide debt due her, without any notice or reasonable ground of suspicion of her husband’s fraudulent intent, the deed would be valid in her hands. Of course,, if there were no bona fide debt, or if she had notice of the intention of her husband or had reasonable grounds to suspect it, the deed would be void as to the creditors. Hollis v. Sales, 103 Ga. 75.

4. The claimant excepts to the refusal of the court to give in charge to the jury certain other requests to charge. These will be found in the official report. An examination of them will show that they are not sound. Two of them make the test of the validity of the conveyance the value of the consideration therefor, without any reference to the fact that although the consideration may be a valuable one the conveyance may be void because made with intention to hinder or defraud creditors, the grantee knowing or having reason to suspect that such was the intention. The other recognizes the necessity that the conveyance should be bona fide and for a valuable consideration, but does not in any way refer to the question of notice or ground for reasonable suspicion. For these reasons the requests were not sound as matter of law, and the trial judge did not err in refusing to give them in charge to the jury.

5. Several grounds of the motion for a new trial complain of the admission of certain evidence offered by the plaintiff. With the exception of the ground above ruled upon, none of the exceptions to the admission of evidence can be considered by this court. Of the amended motion for a new trial, grounds 5, 7, 8 and 9 are defective in that they state that the evidence was objected to at the time when offered and give the reasons why such evidence is claimed to be inadmissible, but do not allege that these reasons were the ones urged at the time the evidence was offered; ground 6 does not state that there was any. objection at all to the evidence at the time it was offered.' It is scarcely necessary to repeat here the frequent rulings of this court, that it can not consider grounds of a motion for a new trial, based upon the admission of evidence, unless the' grounds show what are the objections to such evidence and that these objections were made when the evidence was offered.

Judgment reversed.

All the Justices concurring.