Trice v. Rose , 79 Ga. 75 ( 1887 )

Blandford, Justice.

Mrs. Trice obtained a judgment against Nathan McGhee, on the 23d of February, 1875; and upon this judgment execution issued, and was levied upon a certain tract of land, 256 acres, known as “ the Jackson place.” Rose interposed a claim to this land, and the issue thus ‘formed .was tried. He claimed that in January, 1873, he purchased this land from McGhee; that in August,' 1872, he had become the surety of McGhee to Sibley & Son for the sum of $2,500, and that McGhee, to indemnify him against loss as surety, made a mortgage to him of this tract of land; that on the 1st of January, 1873, he (Rose) took up McGhee’s note to Sibley & Son, upon which he was surety^ and gave his own note for $2,500 to Sibley & Son and secured them; in consequence of which, McGhee sold him this lot of land. Rose said that he went into possession of the land. After the time of this purchase, Rose foreclosed his mortgage on the land; and he afterwards pledged the writ of execution issued upon the judgment of foreclosure for money he had borrowed from other persons-It was shown that McGhee remained in possession of the land after Rose says he sold it to him, some six months, until Rose could fix up a house for him to live in; he then took McGhee to his house, and McGhee lived with him until the time of his death, a short time since. McGhee gave in the land for taxes as agent, not stating for whom, and continued so to give it in for ten years, from 1873 to 1883; and all that time he (Rose) gave in, as his own, other land that belonged to him. In 1882, McGhee applied to the superior court to have a trustee appointed for himself. It appears that this land was given to him by the will of his grandmother, and in that will she appointed a trustee for him to prevent him from selling it, or prevent its being levied on and taken from him on account of judgments or executions that might be against him. The plaintiff in execution offered in evidence this application of McGhee for the appointment of a trustee, and the court rejected it; and this is the only error of law complained of in the record.

In 1883, long after the judgment of Trice, Rose took a conveyance from McGhee to this lot of land.

The jury found the property not subject, and a motion for a new trial was made under these circumstances. The court refused it. We think a new trial ought to have been granted. It appears that the land was worth $5,000 or thereabouts. McGhee was insolvent at the time. This debt of Mrs. Trice was then in existence. . He was insolvent in 3 873, when Rose says he purchased this land from him. He only gave for it, according to his own account, $2,500.' The proof shows that Rose only paid out about $800. If it be true that he purchased the land from McGhee, it is hard to bring the mind to believe that he was a bona fide purchaser under such circumstances. A man cannot be said to be a bona fide purchaser who purchases, from one who is insolvent, all of the insolvent’s property at about half of its value. These are the facts shown by this record. We think there are many badges of fraud in this case; and it was incumbent on the defendant in error to have met and overcome them. He should have explained why it was that McGhee gave in this property for taxes for ten years referred to; why he was living in the same house with McGhee, and why he himself did not give in the property for taxation. He ought to have shown that he paid value for the property, and not only that, but that he paid a fair price for it, according to its value. He ought to have shown that after he purchased it, McGhee had no interest in the property; that at the time the purchase was made, no trust or benefit was reserved to McGhee. Trice offered the application of McGhee for the appointment of a trustee, in which McGhee alleged that he was the owner of the land at that time, and that he lived with Rose at his house; and we think that in such a case as this, it ought to have been admitted in evidence. Rose had stated that after this application was made, this land belonged to him ; that he accepted a deed of conveyance, no deed having been made prior to that time (1883). We think the evidence was admissible, and the court erred in not admitting it and in not granting a new trial.

Judgment reversed.