New v. Driver , 89 Ga. 434 ( 1892 )

Judgment reversed.

C. A. Jones testified: I know the claimant bought the house and lot, because I sold it to her. The notes were made payable to my wife because I gave her the money that was to be realized from the sale of the property. She died September 18, 1885. All of the purchase money for the property has been- paid. L. H. New paid a part of it, and claimant paid a part. About $10 was paid in cash at the time the trade was made. L. H. New was then selling whiskey. He was not in business with any one, so far as I know. I do not remember what part of the purchase price of the property was paid in money, but most of it was so paid; some of the payments were made to- me, but I do not remember the times, except the last payment of $52, which was in December, 1889, and the first payment of $10. Only a small amount was paid to me through W. L. Tumlin, and I do not remember what that was. It is not true that several hundred dollars of the price was paid in merchandise or goods from L. H. New’s store. New was in business with Darnell at the time all of the goods taken on the debt were purchased from the store. Three payments were made direct to me ; the first payment of $10, the payment through "W. L. Tumlin and the last payment of $52. I do not remember what amount had been paid up to September 18, 1885, but all had been paid except about $100. I received the last payment on the purchase price of the house and lot about the last of December, 1885. G. H. Hutchins testified that latein 1884, or early in 1885, L. II. New was in business by himself; that he bought out M. 0. Kay and ran the business alone ; that he and Kay were together awhile ; that he did not continue by himself very long, but went into business with Darnell, and at that time had a nice set of bar fixtures, stock of whiskeys, etc., worth $300 or $400.

The plaintiff introduced ~W. L. Tumlin, who testified that late in 1885, or early in 1886, C. A. Jones brought' to him a note signed by L. H. New, and wanted to trade it to him; it was for the purchase money of the property in dispute, and amounted to $98 or $100 principal and interest; paid Jones some money and settled an account against him in the transaction; the notes in evidence looked like the note Jones traded him. M. M. Mason testified: Just after July term, 1889, of Haralson superior court, claimant said at his house that the way she claimed the house and lot was, that defendant worked her father’ s land four years and did not make anything and she charged him $400 on that account, and then she charged him $400 while living on the Air Line railroad when he lost what he made then. Heard her say the same thing in substance three or four times. Her father had a good deal of property consisting of stock, lands, mules and occasionally some money; was a good liver; had some eight children living and more dead who left heirs. Never heard claimant say anything about the property levied on being hers until it was levied on, though he lived close to her for some time. Darnell testified : In 1885, went into business with defendant New, who did not have more than $100 worth of stock, nor did he put in any other stock, except $10 or $15 worth of goods while they were in business together. C. A. Jones traded a good deal with them. Jones and New had a settlement of Jones’ account, and some notes. New paid some money and settled Jones’ account, and it all amounted to about $350. This was credited to Jones and charged to defendant on their books. Bevis (the witness to the bond for title) was clerking for them at that time and kept their books. Late in 1885 or early in 1886, their business was burned out. Claimant liad no interest in the store. A. J. Head testified that L. H. New was in business by himself but a short while in the winter of 1884 or early in .1885, having bought out Kay, and in a short while he and Darnell went in together, defendant then having not more than $100 worth of stock and bar fixtures. The tax books were introduced to show that the claimant returned no property in 1884 or 1885.

The special grounds for new trial are as follows:

1. The court overruled the claimant’s objections to the testimony of Tumlin, that 0. A. Jones brought to him anote signed by L. H. New and wanted to trade it to him, it being for the purchase money of the house and lot levied on, and amounting to $98 or $100. The ground of objection was, that there was higher and better evidence of the contents of the note, it not being shown that the note testified about was lost or destroyed.

2. The court overruled the objection of the claimant to the execution, the ground of objection being that it was fully paid off and settled, as evidenced by receipt thereon reciting that fact.

8. The court ruled out the following testimony of C. A. Jones: “At the time the sale was made and agreed on, it was said and understood that Mrs. L. H. New’s ■ money was to pay for the property. Pending the negotiations and before the trade was made, Mrs. New said that she was expecting to get some money from her father, and if she got the money she would buy the property, and if she did not get the money from her father she would not buy the property.” Also, “The arrangement was this: Mr. L. H. New was selling goods at that time, and my wife told Mrs. New that what goods she wanted she would get from L. H. New’s store, and that the amount she got in that way could go as a credit on the notes, it being understood by and between my wife, myself, L. H. New and Mrs. L. H. New, that said L. IT. New was to use his wife’s money in his business until Mrs. New’s notes became due, said L. H. New having stated to us that he was using his wife’s money. L. H. New told me b.e was using his wife’s money in his business, but I do not remember the exact date. I do not know that he ever told me this but the one time.”

4. The court charged: “If the property was bought and paid for by the defendant in fi. fa., or was bought by any other person and paid for by the money or property of defendant and the title was made to the wife, then you would be authorized to find the property subject, provided you should find either that it was to delay or defraud the creditors of L. II. New, or if it was a voluntary conveyance made by New at a time when he was insolvent. If New owed debts and was insolvent at the time of this transaction, he would have no right to defeat his creditors by conveying property to his wife, or by paying for property and having it conveyed to his wife.”

5. The court ruled that the plaintiff was entitled to the opening and conclusion, over claimant’s objection.

W. IF. Brown, for claimant. No appearance contra.