DocketNumber: 25978
Citation Numbers: 55 Ga. App. 456
Judges: Broyles, Guerry
Filed Date: 3/11/1937
Status: Precedential
Modified Date: 1/12/2023
In October, 1932, G. M. Roberts, the father, by written contract sold to George W. Roberts, his son, 31 shares of stock in the Haralson County Bank, and G. W. Roberts executed his promissory note for $3100, due October 1, 1935, in payment therefor. It was agreed that any dividends paid by said bank were to be paid to G. M. Roberts and credited on the note. G. M. Roberts died, and Mrs. Bertha M. Roberts, as executrix of the will, brought suit in October, 1934, against G. W. Roberts, setting up these facts and attaching copies of the contract and the note. She prayed for a reformation of the contract, alleging that through a mistake of the scrivener there was omitted from the contract an agreement which was had by the parties that the stock was to be held as collateral for the note. It was also alleged that the defendant was insolvent, was failing to turn over dividends received on the stock, and was about to transfer and assign the same, and would not be able to respond to a judgment. There
The defendant in his answer admitted the execution of the note and the contract, and that the transfer was made because the plaintiff’s testator, Gr. M. Roberts, believed the bank would fail, and to avoid an assessment against himself- in the event of such failure. He made other denials of the allegations of the petition, and alleged that the note sought to be enforced was executory, and was executed to carry out the scheme of the decedent to escape the liability which rested on him as a stockholder in such bank, and was therefore void and unenforceable at law. The bank did not fail. On a trial of the ease the court directed a verdict for the plaintiff in the amount of the note, and granted a decree continuing the injunction. The Supreme Court, in reviewing this judgment (182 Ga. 568, 186 S. E. 193), said: “It appearing from the evidence that the transaction upon which this suit was instituted was fraudulent in its inception, and that the petitioner’s testator and the defendant were in pari delicto, equity should not interfere, but should leave the parties where it finds them. Code, § 37-113. Accordingly, the court erred in directing a verdict for the petitioner, and in continuing the injunction.” When the case went back for trial the plaintiff tendered and had allowed the following amendment: “1. By striking all prayers for equitable relief. 3. Petitioner prays for judgment against the defendant for the value of 31 shares of stock delivered to defendant to and at the sum of $100 per share.” The evidence for the plaintiff proved the facts as alleged, and showed that the purpose of the contract and the note was, as alleged in defendant’s answer, “to evade assessments as a stockholder in a defunct bank.” The bank did not fail, and there was evidence as to the value of the shares. The defendant introduced no evidence, and the court directed a verdict in his favor. To this ruling the plaintiff excepted, averring that it was contrary to law, and that the evidence demanded a verdict in her favor.
A motion was made to dismiss the writ of error on the ground that there was no proper assignment of error. “The direction of a verdict is such a final judgment as to support a direct bill of exceptions. A simple statement in the bill of exceptions that
Under the plaintiff’s evidence the transfer of the bank stock was to defraud or delay his creditors. “If two parties confederate for the purpose of defrauding the creditors of one of them, and in pursuance thereof the debtor executes and delivers a deed conveying land to the other, neither law nor equity will help him to cancel such deed or to avoid its effect by showing that it was fraudulent.” Sewell v. Norris, 128 Ga. 824 (58 S. E. 637, 13 L. R. A. (N. S.) 1118); Parrott v. Baker, 82 Ga. 364 (4), 373 (9 S. E. 1068). In the present case the Supreme Court has expressly said
Judgment affirmed.