DocketNumber: No. 4071
Citation Numbers: 158 Ga. 234
Judges: Beck, Bussell
Filed Date: 4/30/1924
Status: Precedential
Modified Date: 1/12/2023
The Royster Guano Company brought its equi
The demurrer upon the ground that there was no equity in the petition, and that the plaintiff had a common-law remedy, is without merit; and the court properly overruled the same.
The court did not err in excluding the parol evidence offered to show that L. E. Durden was a mere surety, under the provisions of section 3558 of the Civil Code, and the cases of Patterson v. Clark, 101 Ga. 214 (28 S. E. 623), and Warthen v. Melton, 132 Ga. 113 (63 S. E. 832, 131 Am. St. R. 184).
The reference in the charge of the court to L. E. Durden as “the principal defendant” could not have been harmful to the movant. In one sense he was the principal defendant. He was the defendant who, it was alleged, made the conveyance to his wife which is attacked as being fraudulent. He was defendant in both executions, and hence in one sense of the word he was the principal defendant. But even if it be conceded that the wife was the principal defendant, inasmuch as she lost by the verdict of the
The fourth ground of the amended motion for a new trial contains exceptions to portions of the court’s charge stating the contentions of the plaintiff. The exceptions are, first: “Because it is contrary to law and equity.” The excerpt is a lengthy one, and in the main presents the real issue involved in the case, eliminating the contentions which are not disputed. If there was any particularly objectionable feature of the charge, it is not pointed out; and the exception, being to the entire charge set forth in the ground of the motion, is without merit, parts of it being upexceptionable. The other exception to the charge is, that, while the court detailed facts favorable to the plaintiff, he “failed to detail the undisputed facts favorable to the defendant.” The exception is without merit, because where an exception is to a part of a charge, it is not good ground of exception that the court failed to charge in that connection some other principle or rule of law. The ruling here made in principle covers the exception to the charge contained in the next succeeding ground of the motion.
The last ground of the motion for new trial contains the exception that the court failed to charge section 3230 of the Civil Code, relating to preference by a debtor of one creditor to another. The failure to give this section in charge was not error. While it would have been a pertinent and appropriate charge under the facts, the failure to give it, in the absence of a written request, is not ground for a new trial, inasmuch as the court gave a full charge upon the precise issue involved in the attack upon the deed from L. E. Durden to his wife; charging, in substance, that if the husband executed the conveyance to his wife for the purpose of hindering, delaying, or defrauding a creditor in the collection of his debt, and if the wife took with notice óf such intention, the deed would be void as to creditors; but that on the other hand, if the husband made the conveyance to his wife in good faith, without the intention upon his part to hinder, delay, or defraud
The evidence was sufficient to authorize a finding in favor of the plaintiff. “Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” Civil Code, § 4626. “When a transaction between husband and wife is attacked for fraud by the creditors of either, the onus is on the husband and wife to show that the transaction was fair.” Civil Code, § 3011.
Judgment affirmed.