Perkins, Hopkins & White v. Patten , 10 Ga. 241 ( 1851 )

By the Court.

Warner, J.

delivering the opinion.

[1.] This was a claim case, and the plaintiffs in execution were endeavoring to subject the property to two judgments— one obtained in favor of Perkins, Hopkins & White against Curtis & Brown, the other obtained in favor of C. & G. H. Kelsey against Curtis & Brown. On the trial of the claim, an objection was taken to the execution in favor of Perkins, Hopkins & White, on the ground that it was void, because the original suit against the defendants was commenced in the Inferior Court of the County of Marion, in which the defendants resided at that time, but while the suit was pending, that part of the County of Marion in which the defendants resided, was, by an Act oí the Legislature, included within the limits of the new County of Macon, and there was no provision in the Act creating the new County of Macon, to transfer the suits pending in the County of Marion, nor any order of the Court, ordering such suits to be transferred from the County of Marion to the new County of Macon, in which the judgment was rendered. Upon this state of facts, it is insisted that the judgment rendered in Macon County, in a suit which was commenced in Marion County, is void, because the Court in Macon had no jurisdiction of the case or the parties. How the case got from Marion to Macon County does not appear. There is no provision in the Act of 1837, organizing the new County of Macon from the territory of the Counties of Houston and Marion, for the transfer of any suits from either of those Counties to the new County. The 7th section of the Act creating the new County provides, that the Inferior Courts shall be held therein, on the second Mondays in May and Nov. of each and every year. By the first section of the 3d article of the Constitution of this State, it is declared, that “ All civil cases (except in cases respecting the titles to land,) shaU'Joe tried in the County wherein the defendant resides.” Prince, 910. By the new organization of the Counties, the defendant resided in Macon County, without any change of his location. By operation of law, he becomes a citizen of the County of Macon, and is bound, with his neighbors, to perform all his civil duties in that County. His neighbors perform Jury duty in the Courts of the new County, and not in the old, so that if his legal rights are to be determined by a Jury from the vicinage, the. trial must be had in the new County. But, in our judgment, the Constitution settles the question, that the trial of the cause was properly had in the new County of Macon, for the reason that was the County wherein he resided. If the Constitution did not give the right to have the cause tried there, an enactment of the Legislature, transferring the cause from the old to the new County could not confer it.

The jurisdiction for the trial of the cause is fixed by the Constitution to be in the County wherein the defendant resides. The suit was properly commenced in Marion County, as the defendants resided there at that time, but the new County of Macon being organized, in which the defendants resided, the suit was necessarily transferred, by operation of law, from the County of Marion to the new County of Macon for trial, in accordance with the provisions of the Constitution. Such then, in our judgment, being the legal effect of the creation and organization of the new County, under the Constitution, in regard to the rights of the parties in the original suit and the trial thereof, the judgment rendered in the Inferior Court of Macon County is a good and valid judgment, and binding on the parties, until set aside for some other cause, if any exists.

[2.] It appeared on the trial, that the defendant in execution conveyed all the property levied on to the claimant, by one deed of conveyance. That deed was attacked for fraud against creditors, on the ground that the defendant remained in possession of a part of the property so conveyed, which was a badge of fraud, and unless satisfactorily explained, would vitiate the deed. The land conveyed by the deed consisted of different tracts or lots.

The counsel for the plaintiff in execution requested the Court to charge the Jury, that “ If after the execution of the deed from defendant, Curtis, to Patten, the claimant, Curtis continued in possession of the property conveyed, or any part thereof, it was pima facie evidence of fraud as' against creditors, unless the possession was satisfactorily explained.”

The Court refused so to charge the Jury, but instructed them, “ That if Curtis remained in possession of only a part of the premises conveyed, (if the premises were in separate settlements,) then the possession was prima facie evidence of fraud only as to the part of the premises in the actual possession of the defendant,” &c. We think the Court erred in not giving the instruction as requested, and in giving the charge to the Jury as stated in the record. The idea of the Court appears to have been, as we understand it, that the possession of the vendor was only prima facie evidence of fraud as to the particular lot or tract of land of which he remained in possession after the sale, whereas the fraud is alleged against the deed which conveys all the property. The plaintiff in execution alleges the deed of conveyance is fraudulent as against creditors, and that the defendant remaining in possession of part of the property conveyed, is the evidence of it; that such possession is a circumstance going to show a secret understanding between the parties, that the conveyance was made for the benefit of the debtor; that the possession of a part of the property conveyed by the vendor, is an evidence of a trust reserved between the parties, for tb e benefit of the vendor and his family, which goes to show the whole transaction to have been covinous, and evincing the intention of the parties, subject, however, to be satisfactorily explained, as was ruled by this Court in Peck vs. Land, 2 Kelly, 12. The request of the plaintiff’s counsel made to the Court to charge the Jury, embodies the legal principles applicable to this case, and, in our judgment, ought to have been given as requested. In the view which we have taken of this case, it will not be necessary to notice the other grounds of error taken in regard to the validity of the Kelsey fi. fa. or the refusal of the Court to postpone the trial of the cause, as the difficulties then suggested will doubtless be obviated on the new trial, if the position assumed by the counsel for the plaintiff in error be correct as to the original judgment.

Let the judgment of the Court below be reversed, and a new trial granted.