Booher v. Worrill , 57 Ga. 235 ( 1876 )

Bleckley, Judge.

1. Where man and wife are acting together, on the same side of a question of property, they are under temptation to do themselves more than justice. What is secured to the one is apt to be shared by the other. With respect to enjoyment, however it may be as to title, neither is a stranger to the other’s fortune. Contracts between them whieh retain in the family property that would otherwise go to satisfy honest creditors, are to be subjected to strict scrutiny — a vigilant judicial police. When a creditor challenges such a contract for fraud, slight evidence will change the onus, and cast on the conjugal pair the duty of manifesting the genuineness and good faith of the transaction by such evidence as will satisfy, or ought to satisfy, an honest jury.

2. Here we have a conveyance made by the husband to his wife, pending the creditor’s suit, and only ten days before judgment. The property conveyed was worth several thousand dollars, and the evidence indicates that it was all the debtor had left. He stripped himself of the last and only means of making voluntary payment; and if the conveyance were to stand, a.coercive collection of the debt would, doubtless, be impossible. With these indicia of fraud, there is a prima facie case, and the burden of meeting and explaining it is upon the claimant.

3. And what is the explanation offered ? Chiefly the acts and declarations of the parties themselves at the time of the transaction which stands impeached. The deed purports to have been made for a valuable consideration. The wife had real estate capable of yielding rent. She made a large claim upon her husband for rents collected and not paid over. He admitted that the claim was just. An account was made out and receipted, and the deed was executed and delivered. By special contract, reduced to writing, the deed was to be in part payment of the account if the property should not be disencumbered by the husband, and in full payment if it were disencumbered. The main encumbrance treated about, was a mortgage intended to be used to raise money to pay off this creditor, but which was not so used, the effort to do so proving fruitless. And, thereupon, the mortgage itself was offered to the creditor, on condition that he would grant indulgence for two years. These terms being rejected, the mortgage was allowed to drop and go for nothing, and thus the wife’s title was made good, and the creditor left wholly unprovided for. Now, to put bottom in all this, the actual existence of a debt for rents collected by the husband for the wife, and not paid over, is indispensable. Yet, no witness testifies to the collection of a single dollar. The whole matter stands on what the parties themselves said and did. The wife claimed — the husband admitted — the account was made out and receipted — the deed was made and delivered. If the husband had, in fact, made collections of rents, to the amount of thousands of dollars, this must have been susceptible of proof. Those who paid the money could have been called to testify, and even the parties themselves were competent witnesses. But no attempt was made to establish any payment to the husband; no witness was examined on the subject, and no excuse was given why witnesses were not produced, not even why the claimant or her husband was not interrogated. The debt was wholly unproved ; and its real existence was the vital question, as was ruled in' this same case, at July term, 1875, 55 Georgia Reports, 332.

2. To scrutinize the charge of the court complained of would be fruitless. Whether the charge was correct or not, the case could have had no other right result, on the evidence before the jury, than the one arrived at.

3. Equally immaterial is it whether the witness, Dr. Bussey, made a mistake in his evidence or not. The proposed correction of the mistake would still leave the radical infirmity of the claimant’s case unremedied. There was no effort to prove by Dr. Bussey that he ever paid any rent to the claimant’s husband, and it is not shown that he intended to testify to that fact on the trial, or that he would or could testify to it now. Besides, even a clearly material mistake by a witness seems not to be a favored ground for new trial: 25 Georgia Reports, 182; 37 Ibid., 48; 15 Ibid., 550; 54 Ibid., 635; Josey vs. Stapleton, July term, 1876.

Judgment affirmed.