Nicol & Davidson v. Crittenden , 55 Ga. 497 ( 1875 )

Bleckley, Judge.

This claim involved the furniture in the H. I. Kimball House, a hotel in the city of Atlanta. The furniture was levied upon by attachment in favor of the plaintiffs, as the property of H. I. Kimball, who was confessedly once the owner, and under whom Crittenden claimed by purchase. At the time of the levy Crittenden had possession. The plaintiffs, as creditors of Kimball, attacked the sale to Crittenden on several grounds. They said, first, that it was not real but only colorable and pretended; secondly, that if real, it was fraudulent because made with intent to delay and defraud creditors; and, thirdly, that it was a conditional and not an absolute sale, and was incomplete at the time of the levy.

The jury rendered a verdict for the claimant, and the plaintiffs moved for a new trial on many grounds, most of them relating to the charge of the court, and being complaints either of instructions giv.en or'of failure to instruct further.

We have considered and decided upon all the points made in the motion for new trial except those relating to the sufficiency of the evidence and the agreement of the verdict, or rather its disagreement, with law, equity, and the charge of the court as given.- The disposition we make of the case renders it proper that we refrain from expressing any opinion on these matters.

Our rulings in the case are set out fully in the head-notes which we have prepared to embody the legal propositions which we decide. These notes sustain the court below in everything except one. We hold that the court erred in charging the jury that the purchaser would be protected against the fraudulent intent of the seller unless that intent was known to him. The Code, in section 1952, expressly prescribes another condition, which is that he should be without grounds for reasonable suspicion. And this element of invalidity was much more involved in the facts of the case than was the element of actual knowledge. The jury ought to have passed upon it, and this they were precluded from doing by the charge as given. It is impossible that the case can be fully and legally tried without scrutinizing the grounds of suspicion which the claimant may have had, and which the plaintiffs contend he did have. The jury, besides dealing with the other issues in this case, should be directed to inquire whether the debtor intended to delay or defraud creditors, and if so, whether the claimant purchased on a valuable consideration, and without notice or grounds for reasonable suspicion.

The record does not enable us to discover any error in overruling the claimant’s motion to dismiss the plaintiffs’ motion for new trial. Nothing is disclosed as to the grounds or reasons presented to the court and passed upon by it in acting upon the motion to dismiss. For aught that appears, the court ruled properly on the matters before it. What these matters were we cannot tell, as we have only the bare fact that the motion was overruled, without any copy of the motion or any recital of its contents.

Judgment reversed.