Hines v. Wilson , 164 Ga. 888 ( 1927 )

Russell, C. J.

1. The allegations of the petition were sufficient to withstand. the general demurrer based upon the grounds that the petition fails to set out a cause of action, that the allegations are not sufficient to authorize the grant of any of the relief prayed for, and that the petition shows on its face that the plaintiffs have no right of action against the defendants on account of the facts alleged. A general demurrer will not prevail where part of the petition is good. Lowe v. Burke, 79 Ga. 164 (3 S. E. 449) ; Pryor v. Brady, 115 Ga. 848 (42 S. E. 223). A bad part in pleading does not make the whole bad, but a good part makes the whole good enough to withstand a general demurrer. Munnerlyn v. Augusta Bank, 88 Ga. 333, 339 (14 S. E. 554, 30 Am. St. R. 159).

2. The power conferred upon the superintendent of banks by section 7 of article 7 of the banking act of 1919 (Acts 1919, pp. 135, 156), as amended by the act of 1922 (Acts 1922, pp. 63, 65), is in terms confined to such matters as relate to the assets of the bank as such — debts and liabilities due to the bank in its corporate capacity, and does not include authority to sue for torts committed upon depositors by individuals who happen to be officers of the bank.

'(a) Where parties conspire to defraud the plaintiff or make a wilful misrepresentation of material fact to induce the plaintiff t.o act to his injury, an action for deceit will lie. Cheney v. Powell, 88 Ga. 629 (15 S. E. 750). The directors of a corporation may be liable for false statements in regard to the affairs of the corporation, as for fraud and deceit. “When the law requires one to do an act for the benefit of another, or to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the party may recover.” Civil Code (1910), § 4405.

(6) Where representations are made to the public at large, or to a particular class of persons, with the intention of influencing any member of the public or of the class to whom they may be communicated, any one injured through the proper reliance thereon may secure redress. In such a ease it is not necessary that there should be an intent to defraud any particular person, but the representation must of course have been intended for the public or for a particular class of persons to which the complainant belongs. 26 C. J. 1121, § 48, citing Young v. Hall, 4 Ga. 95.

(c) The directors or officers of a corporation are liable for their fraudulent acts and representations to persons who are injured thereby. They are no more immune from false representations with intent to deceive, which result in a loss to one who relied thereon, than any other individual. The fact that they are acting for the benefit of the corporation and that they did not personally receive the fruits of the transaction, or that the company is nominally the contracting party, does not relieve them from liability.

3. An equitable petition to set aside conveyances on the ground that they were made in fraud of the rights of creditors can be joined with a suit for fraud and deceit. The liability of directors for fraud and deceit resulting in damages to the creditors of the corporation is a joint and several liability. National Exchange Bank v. Sibley, 71 Ga. 726; Schley v. Dixon, 24 Ga. 273 (71 Am. D. 121) ; Burns v. Beck, 83 Ga. 471 (10 S. E. 121) ; Solomon v. Bates, 118 N. C. 311 (24 S. E. 478, 54 Am. St. R. 725) ; 14 C. J. 193, § 56.

4. Where a defendant is alleged to have transferred his property separately to two grantees, both conveyances being in fraud of the rights of creditors, they can be joined in a suit against the grantor for fraud and deceit and fraudulent conveyances of property. “Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action.” Civil Code of 1910, § 5419; Knox v. Reese, 149 Ga. 379 (100 S. E. 371). “The rights of creditors should be favored by the courts, and every remedy and facility afforded them to detect, defeat, and annul any effort to defraud them of their just rights.” Civil Code (1910), § 3216. One suit may be brought to recover on.the debt and to set aside fraudulent conveyances, joining debtor and grantees. DeLacy v. Hurst, 83 Ga. 223 (9 S. E. 1052) ; Vaughn v. Georgia Co-operative Loan Co., 98 Ga. 288 (25 S. E. 441); Kruger v. Walker, 111 Ga. 383 (36 S. E. 794) ; Booth v. Mohr, 122 Ga. 333 (50 S. E. 173) ; Fourth National Bank v. Mooty, 143 Ga. 137 (84 S. E. 546). In this State a debtor as well as the fraudulent grantee should be joined as defendants. Gibbs v. Harrelson, 147 Ga. 404 (94 S. E. 235). Where several deeds are made to several grantees in pursuance of a common plan to defraud creditors, it is proper to join the several grantees. See 27 C. J. 476, 756, §§ 56, 79.

5. Different defendants may be joined in the same action, if there is a common connecting interest in the subject-matt'er which the plaintiffs are attempting to subject to the lien of a judgment or decree, where either plaintiffs or defendants have one common interest in the point at issue; as, for instance, where several plaintiffs have the same interest in subjecting the property of one or more defendants who are alleged, to have formed a conspiracy and are acting in concert, so that there is only one common point in the litigation, there is no misjoinder of causes of action. Conley v. Buck, 100 Ga. 187 (28 S. E. 97); Spinks v. LaGrange Bank & Trust Co., 160 Ga. 705, 714 (129 S. E. 31).

No. 5768. October 1, 1927.

6. The trial judge did not err in overruling the demurrers.

Actions, 1 C. J. p. 952, n. 45, 47; p. 1091, n. 16, 17; p. 1099, n. 37; p. 1100, n. 39.

Banks and Banking, 7 O. J. p. 571, n. 37 New.

Corporations, 14a C. J. p. 181, n. 67; p. 182, n. 68, 69, 70, 71; p. 193, n. 56.

Equity, 21 C. J. p. 78, n. 54, 55.

Eraud, 26 C. J. p. 1121, n. 21; p. 1122, n. 22, 23, 28; p. 1123, n. 29; 27 C. J. p. 9, n. 66; p. 10, n. 67; p. 13, n. 99.

Eraudulent Conveyances, 27 C. J. p. 476, n. 56; p. 701, n. 95; p. 747, n. 71, 72, 73; p. 748, n. 81 New; p. 751, n. 29; p. 756, n. 78, 79.

Pleading, 31 Cyc. p. 329, n. 61; p. 332, n, 68.

Judgment affirmed.

All the Justices concw, except Rill, J., absent. J. M. Lang and Morris, Hawlcins & Wallace, for plaintiffs in error. Willingham, Wrighl & Covington and Y. A. Henderson, contra.