Wells v. Blitch et al.

Supreme Court of Georgia1937-06-16No. No. 11855

184 Ga. 616

Summary · law.co

Holding. The judgment for the claimant was affirmed. The evidence at trial was sufficient to support a verdict establishing either that the defendant's conveyances were not void against the creditor or that the claimant was a bona fide purchaser without notice.

The case involved a creditor's challenge to property transfers made by a defendant to his wife, and subsequently purchased by a claimant from the wife. The court addressed principles governing the validity of property conveyances when a debtor may be insolvent and when property is subject to execution by creditors. The claimant presented evidence at trial to support his claim as either a bona fide purchaser without notice or under alternative statutory protections for purchasers.

The court upheld the jury's verdict in favor of the claimant, finding that the evidence was sufficient to establish either that the deeds to the wife were not void as against the creditor, or that the claimant qualified as a bona fide purchaser without notice of any fraud. The court noted that the claimant had introduced additional evidence on retrial to address deficiencies identified in a prior decision, and that the mere fact of a levy on property does not automatically prove fraudulent transfer—the issue of fraud remains subject to judicial determination with all evidence considered.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether conveyances by an insolvent debtor to his wife constitute fraudulent transfers against creditors
Status of a subsequent purchaser as a bona fide purchaser without notice
Effect of a levy on property regarding the validity of prior conveyances
Sufficiency of evidence to support a claim verdict on alternative theories

Procedural posture

This was an appeal from a jury verdict in favor of the claimant following a retrial at which additional evidence was presented to address deficiencies identified in the court's prior decision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Justice.

1. A suit for a money judgment does not constitute a lis pendens, affecting the title to property conveyed by the defendant pending the action. Moody v. Millen, 103 Ga. 452 (30 S. E. 258).

2. “A bona fide sale of property, not made to hinder, delay, or defraud creditors, is not rendered invalid because the vendor may have been insolvent at the time.” Hadden v. McQueen, 138 Ga. 406 (75 S. E. 333).

3. Possession retained by the vendor after an absolute conveyance of real estate is prima facie evidence of fraud, but may be explained. Goodwyn v. Goodwyn, 20 Ga. 600 (5); Stephens v. Southern Cotton-Oil Co., 147 Ga. 410 (2) (94 S. E. 245).

4. “If one with notice shall sell to one without notice, the latter shall be protected; or if one without notice shall sell to one with notice, the latter shall be protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.” Code, § 37-114.

5. Even if the claimant could not be considered as a bona fide purchaser until after payment of the purchase-money, and such payment was not completed until after the levy, although the deeds were made previously, the mere fact, that the property was levied on did not prove that the deeds were fraudulent as against the plaintiff in fi. fa., but the issue as to fraud remained open for judicial determination, the payments made by the claimant after levy being at his own risk, as between him and the plaintiff ponding such adjudication. See, in this connection, Mackey v. Bowles, 98 Ga. 730 (2) (25 S. E. 834); Donalson v. Thomason, 137 Ga. 848 (4) (74 S. E. 762); Henderson v. Willis, 160 Ga. 638 (6) (128 S. E. 807).

6. Under the foregoing principles as applied to the instant claim case, the verdict in favor of the claimant was authorized.

(a) On the trial now under review the claimant introduced additional evidence to supply the deficiencies pointed out in the former decision, Wells v. Blitch, 182 Ga. 826 (187 S. E. 86).

(h) Under the evidence it can not be said as a matter of law either that the deeds made by the defendant to his wife were void as against the plaintiff creditor, or that the claimant who purchased from the wife was not a bona fide purchaser without notice. Accordingly, the evidence was sufficient to support the verdict under either theory stated in the Code, § 37-114, supra. Willingham v. Slade, 112 Ga. 418 (2) (37 S. E. 737); West v. Wright, 121 Ga. 470 (49 S. E. 285).

No. 11855.

June 16, 1937.

Rehearing denied July 12, 1937.

W. T. BurTchalier and J. V. Kelley, for plaintiff.

E. E. Elders and O. L. Gowari, for defendants.

7. The rule that “if there are several pleas filed by the defendant, a verdict for the defendant shall show upon which of the pleas the verdict is rendered” (Code, § 110-102), has no application to a claim ease, although the claimant may introduce evidence to sustain his claim on several theories. See, in this connection, Underwood v. Thurman, 111 Ga. 325 (36 S. E. 788).

8. The ground of the motion for a! new trial complaining of the court’s refusal to give a requested charge does not state that the request was in writing, and thus presents no question of error for determination by this court. Little v. West, 145 Ga. 563 (2) (89 S. E. 682); Nevil v. Trapnell-Mikell Co., 31 Ga. App. 207 (2) (120 S. E. 430).

9. Nor do the other special grounds show reversible error. The judge did not err in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concw.

On motion for rehearing, Russell, C. J., withdraws concurrence ahd dissents from the decision and judgment as originally entered.