Opinion
13245.
APRIL 11, 1940.
Levy and claim. Before Judge Wyatt. Heard superior court. December 15, 1939.
Wyatt Morgan, for plaintiff in error.
J. L. Smith and Frank L. Gearreld, contra.
1. Grounds of a motion for a new trial complaining of the admission or rejection of evidence should show, in order to be complete, the name of the witness whose testimony was admitted or rejected; and in the absence of such showing, no question is presented to this court for review.
2. On the trial of an issue made by the levy of a fi. fa. on property to which claim is made by the wife of the defendant in fi. fa., it is not error to admit in evidence notes signed by the defendant before the execution of the deed under which the wife claims. Nor was it reversible error in this case to admit, over the objection that it was hearsay, a copy of notice of suit given by the attorney for the plaintiff in fi. fa. to the husband, a month and a half after the date of the deed under which the wife claimed.
3. In the present case it was not error for the judge to charge the jury that the claimant denied knowledge of any fraudulent intention on the part of her husband in conveying to her the property claimed for a valuable consideration, on the ground that there was no evidence to authorize the charge, when the wife had testified that she had no knowledge of such intention, if it existed, and that she paid $500 for the property involved.
4. The evidence supported the verdict, and the general grounds of the motion for a new trial are without merit.
No. 13245. APRIL 11, 1940.
On March 22, 1937, execution was issued on a judgment in favor of J. J. Awbrey against R. L. Arrington. On November 7, 1938, this execution was levied on the south half of the north half of lot of land No. 193 in the 12th district of Heard County, embracing fifty acres more or less, the entry of levy reciting that the land was levied on as the property of the defendant in fi. fa., and was in his possession. On November 22, 1938, Lula Arrington filed her claim to the land. The trial resulted in a verdict declaring the property subject to the levy. The claimant excepted to the overruling of her motion for a new trial.
The claimant testified on the trial, that she is the wife of the defendant in fi. fa., and that the land levied upon was hers by virtue of a deed which she introduced in evidence, dated July 1, 1936, executed by her husband, and conveying the land to her. (The record in this court does not contain a copy of this deed. Only a memorandum describing the land, giving the names of the grantee and the grantor, and the date of the deed, without showing what consideration was recited therein, is in the record.) The claimant testified, that she gave $500 for the land by crediting her husband, the grantor, on an account of over $800 that he owed to her; that this account was made up of a series of loans starting in 1918 and running through 1934, being the proceeds from a bale of cotton which she claimed to have owned and sold each year, together with stated amounts which she obtained by the sale of certain cows, all aggregating more than $800; that she had a cotton patch for each of the years on land owned by her husband; that she had nothing to do with procuring the seed, paying for the fertilizer used in making the cotton, paying for ginning or selling the cotton; that her husband attended to these matters and paid for them; and that the cotton was sold each year by her husband and in his name. She introduced in evidence tickets for the sale of cotton by her husband for the years 1918, 1921, 1922, 1924, 1931, 1932, 1934, and 1935, and one undated ticket for the sale of three bales of cotton, on each of which tickets a mark was drawn around one bale, which she testified was her bale. Also, her tax returns for 1937, 1938, and 1939; and her application for homestead tax exemption, which she testified embraced the land involved in the claim. She testified, that she had a book at home containing a record of her loans to her husband of the cotton and cow money; that she was testifying on the trial from a memorandum made by her about 1936 from that book, and from which she was refreshing her memory; that on a former trial of this case counsel for the plaintiff asked her about the little book, but she did not think to bring the book for use on the present trial; that on July 1, 1936, she gave her husband credit on the account he owed her for $300 for some mules, and $500 for the land, but she did not mark the accounts paid and surrender them to her husband when the land and mules were conveyed to her; that she knew her husband bought supplies from the plaintiff in 1918, 1920, 1921, and 1922, and that he was trading on credit some of the years, but that she did not know that he gave a note in 1929 or in 1935. In reply to the question whether "in 1936 Mr. Gearreld came up there to see her husband about these claims," she answered, "I don't know. He came one time when I was out there in the cotton patch." She knew nothing about her husband receiving notice for attorney's fees. She never paid anything for ginning, bagging, ties, and guano, and she had never given her husband credit for them; it had never been mentioned; her husband owed the plaintiff, owed doctor bills, and owed her. She did not remember telling anybody in particular about having a cotton patch. The tax commissioner testified that the claimant signed the tax returns for 1937, 1938, and 1939, and the application for homestead exemption from taxation.
The plaintiff testified, that R. L. Arrington was in possession of the land levied on when credit represented by the execution in this case was extended; that he had no notice that claimant had or claimed an interest in the crop, and that he had never heard of her having a cotton patch, but he did not know whether or not she had a cotton patch or a bale of cotton every year. Jim Burgess testified that he had known the claimant all her life, and had lived within a quarter of a mile from her for the past ten years, and had talked with her frequently, and that neither she nor her husband had ever mentioned about her having a cotton patch; but that he did not know whether or not she had a cotton patch or bale of cotton every year. Other neighbors gave substantially the same testimony as did Jim Burgess. Frank Gearreld, an attorney, testified that the plaintiff turned over to him for collection three notes which he held against R. L. Arrington, one for $255.97 dated March 26, 1929, due October 1, 1929, one for $255.97 dated March 26, 1929, due October 1, 1930, and one for $800, dated March 21, 1930, due October 1, 1930, the latter being secured by a crop mortgage, a mare, and an undivided interest in the estate of the mortgagor's father and mother; that on August 15, 1936, he wrote to the defendant requesting payment of the notes, and giving notice of attorney's fees, as shown by a copy of the letter which was introduced; and that before writing the letter he went to the home of defendant, seeking to collect these notes.
1. The first four grounds of the amendment to the motion for a new trial complain of the court's ruling upon the admissibility of evidence, but do not state the name of the witness whose testimony was admitted. This court has ruled more than once that grounds of a motion for a new trial complaining of the admission or rejection of evidence should show, in order to be complete, the name of the witness whose testimony was admitted or rejected. Sims v. Sims, 131 Ga. 262 ( 62 S.E. 192); Hunter v. State, 148 Ga. 566 ( 97 S.E. 523); Plemmons v. Sharp, 156 Ga. 571 (3) ( 119 S.E. 532); Williams v. State, 186 Ga. 251 (4) ( 197 S.E. 838). These grounds being incomplete, they can not be considered by this court.
2. Grounds 5 and 6 assign error on the admission in evidence of the three notes signed by the defendant in fi. fa., and payable to the plaintiff in 1929 and 1930, and the notice of attorney's fees, dated August 15, 1936, signed by Frank Gearreld, the attorney for the plaintiff in fi. fa., addressed to the defendant in fi. fa. The ground of objection was that the documents were hearsay. On the material issue of fraud, these notes were circumstances indicating a motive or reason on the part of the defendant for making the conveyance to the claimant, his wife, on July 1, 1936. While it is true that she testified that she had no knowledge of either, she admitted that she knew her husband did a credit business with the plaintiff; and it was for the jury to say whether she had made the proof of good faith required of her by the Code, § 53-505, by simply denying knowledge of such business affairs of her husband. See Simmons v. Realty Investment Co., 160 Ga. 99 ( 127 S.E. 279), where notes of the defendant payable to plaintiff, and dated before the deed under attack, were admitted as evidence. Whether or not the notice for attorney's fees was subject to the objection, it does not appear that its introduction in evidence could have been harmful to the claimant. Her deed was dated July 1, 1936, while this letter was dated August 15, 1936. It thus appeared that she received her deed a month and a half before her husband received formal notice that suit would be instituted. The record does not disclose that the date of the deed was questioned; and it would seem that this letter was favorable, and not harmful, to the claimant. Such an error is not cause for a new trial. See South Georgia Railway Co. v. Niles, 131 Ga. 599 (3) ( 62 S.E. 1042); Hamilton v. State, 143 Ga. 265 ( 84 S.E. 583). These exceptions are without merit.
3. Ground 7 complains of an excerpt of the charge which, in substance, instructed the jury that the plaintiff contended that the transaction between the claimant and the defendant was fraudulent and void, and that the claimant, on the other hand, said that if there was any effort on the part of the defendant to hinder, delay, or defeat creditors, she had no notice of such intention, and that she acted in good faith and gave valuable consideration for the property conveyed; the objection being that there was no evidence to authorize the charge that the claimant was without notice of any intention of the defendant to hinder, delay, or defeat creditors. It would be difficult to state the contention of claimant more favorably than was done in this charge. She did testify that she had no notice; and the charge was authorized by the evidence, was not harmful to movant, and the exception is without merit.
4. The general grounds raise the question of the sufficiency of the evidence to support the verdict. "When a transaction between husband and wife shall be attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair." Code, § 53-505. In this case no pleadings by plaintiff in fi. fa. making such attack is necessary. Askew v. Amos, 147 Ga. 613 ( 95 S.E. 5); Harris v. Anderson, 149 Ga. 168 (2) ( 99 S.E. 530); Fouts v. Gardner, 157 Ga. 362 ( 121 S.E. 330); Simmons v. Realty Investment Co., 160 Ga. 99 ( 127 S.E. 279); Tippins v. Lane, 184 Ga. 331 (4) ( 191 S.E. 134). The burden does not rest upon the plaintiff to establish fraud by proof, but instead the burden is upon the claimant to prove the absence of fraud. Gill v. Willingham, 156 Ga. 728 (9) ( 120 S.E. 108); Simmons v. Realty Investment Co., supra. While the claimant gave testimony to the effect that over a period of nearly twenty years she annually had a bale of cotton which she loaned to her husband, no express consent of her husband that she have the benefit of her earnings is testified to; and while her testimony that her husband borrowed the money would indicate an implied consent, the fact that he paid all expenses, sold the cotton in his own name, and never delivered any of the money to her is a circumstance tending to disprove an implied consent on his part; and thus it was for the jury to determine whether or not his consent was given. In order to entitle the claimant to such earnings of hers, she must have had the consent of her husband, either express or implied. Roberts v. Haines, 112 Ga. 842 ( 38 S.E. 109); Georgia Railroad Banking Co. v. Tice, 124 Ga. 459 (5) ( 52 S.E. 916, 4 Ann. Cas. 200); Cotter v. Gazaway, 141 Ga. 534 ( 81 S.E. 879); Mock v. Neffler, 148 Ga. 25 (3) ( 95 S.E. 673).
We are here dealing with transactions between husband and wife. The confidential and private relationship of such parties affords opportunity for the concealment of fraudulent intentions and transactions. When the court is called upon to determine whether or not fraud exists, every circumstance that is illuminating on this question is a proper matter for the consideration of the jury. The Code, § 37-706, declares that "fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence." The law recognizes that in every case slight circumstances must be considered, and may be sufficient to establish the existence of fraud; and recognizing that in transactions between husband and wife fraud might be so completely concealed that creditors could not expose it, and in order that the public might not suffer from such concealment, the law imposes upon the husband and wife the duty of affirmatively establishing their good faith when creditors attack such transactions for fraud. Giving effect to the letter and spirit of the law touching this important question, the claimant in this case is charged with the legal duty of presenting to the jury a clear and satisfactory showing of good faith. While it is true, as contended by the claimant, that she gave testimony to the effect that she paid a valuable consideration, in the form of past-due indebtedness, for the property claimed, yet the weight of this testimony must be measured by the other circumstances bearing upon the same question. She made no attempt to explain why it was found necessary that she loan her husband one bale of cotton each successive year over such a long period. She rested her case upon the bare assertion that she loaned it to him because he was in a "tight." Her explanation of how she and her husband handled all of the cotton transactions was: "He just went to town and sold it in his name. It was my cotton. He never brought the money back to me. He never gave me any money. He used the money himself. He told me he wanted to borrow it when he came back." It is singular that each year a husband, whose finances were such that he found it necessary to borrow the entire income of his wife from her crop, should just as frequently take from his own inadequate finances money to purchase seed and fertilizer with which to make his wife's cotton and pay for the ginning, bagging, and ties for that cotton, without so much as even mentioning these expenditures to her. The fact that a neighbor who had known her for all of her life talked with her frequently, and lived within a quarter of a mile of her for ten years, had never learned from her or her husband that she had a cotton patch and produced cotton for sale, and the fact that the husband bore all expenses in producing, ginning, and selling the cotton, sold it as his own, and retained the money, would authorize the conclusion that he never consented for her to have the cotton or its proceeds. It appeared from her testimony that she had loaned money to her husband for a period of nearly twenty years without taking any written evidence of the indebtedness; and the jury might consider it more than a mere coincidence that she should obtain a conveyance of the land here involved, as well as other property of the husband, in settlement of the indebtedness, almost simultaneously with the institution of the suit against the husband which resulted in the judgment which is the basis of the present levy. The husband was not introduced as a witness, and the failure to do so was not explained. If his testimony would have supported that of the claimant, why was he not introduced as a witness? These circumstances were sufficient to authorize the jury to find that she had not carried the burden of proving good faith. Accordingly the verdict declaring the property subject was supported by the evidence.
Judgment affirmed. All the Justices concur.