Gaskins v. Gaskins , 145 Ga. 806 ( 1916 )

Fish, C. J.

(After stating the foregoing facts.)

1. One of the grounds of the motion for new trial complains that the court erred in instructing the jury as follows: “If you believe from the evidence in the case that Mr. Gaskins conveyed this property to the defendant, D'oeia Gaskins, with the consent, agreement, and concurrence of Mr. Corley Strickland, that she was to hold the property as security for Mr. Strickland, that there was no intent to hinder, delay, or defraud the said Strickland, then and in that event if you further believe that the property was subsequently sold, the proceeds to be held under agreement between plaintiff and defendant that the proceeds were to be turned over to- the plaintiff; and if you further believe that the clause in the contract as set up by the plaintiff was left out of the agreement in consequence of fraud and imposition on the part of the plaintiff [on the plaintiff?], as alleged in the petition, then the plaintiff would be entitled to recover as prayed for. That is, he would be entitled to recover such amount as went into the hands of the defendant, Mrs. Docia Gaskins.” Among other assignments of error on this excerpt is one that there was no evidence to authorize the submission to the jury of the questions' whether the plaintiff’s wife “was to hold the property as security for Mr. Strickland,” and whether the proceeds of the sale of the property were, by agreement, “to be turned over to the plaintiff.” Another complaint is, that, there being no prayer for a money verdict, the court was not authorized to instruct the jury that in the circumstances stated the plaintiff “would be entitled to' recover such amount as went into the hands of the defendant, Mrs. Docia Gaskins.” The instruction was subject to these criticisms. The plaintiff himself testified: “I did not make it [the deed to his wife] for the purpose of securing Strickland,” and further: “The understanding was that a part of that money [proceeds from the sale of the land] should be invested in that little home at Ray’s Mill, and we all were to live on the balance of the purchase-money.” There was no prayer for a money verdict. It follows that the court erred in giving the instruction; and as it is apparent that it was calculated to mislead the jury to the prejudice of the defendant against whom the verdict was rendered, it is cause for a new trial.

2. Another excerpt from the charge upon which error is assigned is as follows: “The court instructs you further that if you believe from the evidence in the case that there was no agreement by which the property was to be held by the defendant, Mrs. Docia Gaskins, as security for the payment of the debt of Mr. Corley Strickland or any other creditor, but if you believe from the evidence in the case that at the time of the execution of the deed of the plaintiff, Gaskins, to the defendant, Gaskins, that the plaintiff was involved financially, that he owed Mr. Corley Strickland, and if you believe that he made that conveyance to her to hinder Mr. Corley Strickland in the collection of his debt, or to delay him in the collection of the debt or defraud him, that is, put the property where Mr. Strickland could not reach it, and in consequence of that to hinder, delay, or defraud, then the law leaves them— if that be the truth of the case — right where it finds them— where that is done by anybody; and if you find that is the truth of the case, then the plaintiff can not recover.” The error assigned oh this instruction is that it limited the jury to a consideration of the question whether or not the conveyance from the plaintiff to his wife was made to hinder, delay, or defraud Strickland, whereas, if the purpose was to hinder, delay, or defraud any other creditor or creditors, the plaintiff would not be entitled to recover. There was positive evidence that Strickland was not the plaintiff’s only creditor at the time of the execution of the deed to the plaintiff’s wife, and the testimony of the plaintiff himself strongly indicates that at that time he owed other debts besides the one to Strickland. The court therefore erred in restricting the consideration of the jury as above indicated.

3. A further complaint is that the court wholly failed to charge the jury that if the deed made by the plaintiff to his wife was executed for the purpose of delaying or defrauding any creditor . or creditors of his other than Strickland, the plaintiff could not recover. In view of the evidence referred to in the preceding division of the opinion as to there being other creditors than Strickland when the plaintiff made the conveyance, it was error for the court to fail to instruct the jury as it is contended in this ground he should have done, even though no request was made for such instruction.

4. The matter dealt with in the fourth headnote needs no elaboration.

Judgment reversed.

By five Justices, all concurring.