"A married woman may make contracts with other persons; but 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 ยง 53-505; Dwight v. Acme Lumber Supply Co., 189 Ga. 473 (3) ( 6 S.E.2d 586). The testimony of Mrs. Aldridge in this case simply denied any knowledge of her husband's business affairs. "[I]t was for the jury to say whether she had made the proof of good faith required of her by the Code, ยง 53-505 by simply denying knowledge of such business affairs of her husband."
( a) "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, ยง 53-505), so that it shall be made to appear that the transaction as a whole was free from fraud, and the bona fides must be clearly established. Parker v. Harling, 189 Ga. 224 (2, a) ( 5 S.E.2d 755), and cit.; State Banking Co. v. Miller, supra; Dwight v. Acme Lumber Supply Co., 189 Ga. 473 (3, a), 475, 477 ( 6 S.E.2d 586). ( b) Even though, for the reasons stated, the exceptions present no question as to the right of the judge to grant a temporary receiver at the interlocutory hearing, or to do so ex parte when the petition was filed, the question as to the right to such a receivership under the pleading is raised by the attack on the petition, made in the motion to dismiss, on the ground that the petition did not state sufficient facts to authorize the appointment of a receiver.
The bona fides of the transaction is to be determined by the jury, and in the case at bar the evidence did not demand a finding other than that returned by the jury. Accord, Brooks v. Griffin, 10 Ga. App. 497 (1) ( 73 S.E. 752) (1912); see Dwight v. Acme Lumber c. Co., 189 Ga. 473 ( 6 S.E.2d 586) (1939). In light of this holding, we need not consider whether the evidence was also sufficient to permit recovery under Code Ann. ยง 28-201(3).
When a transaction between husband and wife is attacked as being in fraud of creditors, the onus is upon the spouses to show that the transaction was fair. Code ยง 53-505; Dwight v. Acme Lumber Co., 189 Ga. 473 (3) ( 6 S.E.2d 586). There is at least some evidence in this record supporting the defendants' contention that the transfer of the two pieces of property from the judgment debtor to the plaintiff rendered him insolvent. The evidence is undisputed that Pure Oil Company refused to purchase the Avondale Road property until the title was cleared, in view of the defendants' notice that they would file suit to cancel the deeds to the plaintiff.
Held: ( a) While a deed made with intention to hinder, delay, or defraud a creditor of the grantor is void as to the grantee if the grantee has notice of such intention or has reasonable ground to suspect the same, even though it be based upon a valuable consideration ( Dickson v. Citizens Bank Trust Co., 184 Ga. 398, 191 S.E. 379; Smith v. Wellborn, 75 Ga. 799 (8); Dwight v. Acme Lumber c. Co., 189 Ga. 473, 6 S.E.2d 586; Cunningham v. Avakian, 192 Ga. 391, 15 S.E.2d 493), and while the fact that a suit is pending against a creditor at the time a deed is executed is a circumstance which the trior of issues of fact is at liberty to consider in determining whether the grantee takes with or without notice of such intent, or reasonable ground to suspect the same ( Peck v. Land, 2 Ga. 1; Godfrey v. City of Cochran, 208 Ga. 149, 65 S.E.2d 605) โ the pendency of a suit is only a circumstance, and actual knowledge of the pendency of a suit by the grantee is not in and of itself conclusive in law or in fact upon the grantee as to notice or reasonable ground to suspect the fraudulent intent of the grantor. Colquitt v. Thomas, 8 Ga. 258. See also Burkhalter v. Glennville Bank, 184 Ga. 147 ( 190 S.E. 644); Hardin v. Reynolds, 189 Ga. 589 ( 6 S.E.2d 913).
nd prayed that the court declare his lien "prior to all other liens," and that he have judgment against the defendant (the owner of the real estate) for the amount so stated, but in which he sought no judgment against any person as contractor until more than twelve months after his original intervention was filed, when by a second amendment he alleged that the material had been furnished to a named contractor, and prayed that such contractor be made a party defendant, and that he recover a judgment against him for the value or price of such material, such intervention as finally amended was insufficient to show any lien or right of lien as against such real estate; it appearing therefrom that the intervenor had not recovered a judgment against the contractor and had not instituted an action for such recovery within twelve months from the time the claim became due. Griffin v. Gainesville Iron Works, 144 Ga. 840 (2) ( 88 S.E. 201); Hood Brick Co. v. Mangham, 161 Ga. 457 ( 131 S.E. 172); Dwight v. Acme Lumber Supply Co., 183 Ga. 139 ( 187 S.E. 668). 3. There being no contention that the intervention should have been allowed to proceed for the purpose of recovering a personal judgment either as against the owner of the real estate or as against the contractor, independently of any claim of lien as a materialman, no ruling will be made as to these questions.
Picklesimer v. Smith, 164 Ga. 600 ( 139 S.E. 72). But it has also been held, with reference to a bona fide purchaser of the absolute title under an unrecorded deed, that such a purchaser, with no actual notice at the time his conveyance was executed as to a then unrecorded materialman's lien upon the same property, takes the property free of such lien. Ashmore v. Whatley, 99 Ga. 150 ( 24 S.E. 941); Oglethorpe Savings Trust Co. v. Morgan, 149 Ga. 787, 790 ( 102 S.E. 528); Willingham-Tift Lumber Co. v. Barnes, 147 Ga. 209 (2) ( 93 S.E. 201); Dwight v. Acme Lumber Supply Co., 186 Ga. 825 ( 199 S.E. 178); Frazer v. Jackson, 46 Ga. 621. The same rule has been applied, and the same priority allowed, as to the vendee under an unrecorded security deed, whose rights under the present recording statutes, as pointed out in paragraph 1 above, are the same as the rights of a purchaser of the absolute title. Milner v. Wellhouse, 148 Ga. 275 ( 96 S.E. 566); Guaranty Investment Co. v. Athens Engineering Co., 152 Ga. 596 (6, 7) ( 110 S.E. 873); Picklesimer v. Smith, supra. ( b) Under the preceding rules, since the security deed was executed before the delivery of any material, and therefore necessarily before the record of the materialmen's claims of lien, no question of notice to the grantee as to the materialmen's claims of lien at the time the security deed was executed would be involved.
Johnston v. Neal, 67 Ga. 528; Williams v. Smith, 128 Ga. 306 ( 57 S.E. 801). 5. An unrecorded claim of a materialman's lien is inferior to a security deed on the property improved, taken without actual notice of the unrecorded claim of lien. Bennett Lumber Co. v. Martin, supra; Milner v. Wellhouse, 148 Ga. 275 ( 96 S.E. 566); Oglethorpe Savings Trust Co. v. Morgan, 149 Ga. 787, 792 ( 102 S.E. 528); Picklesimer v. Smith, 164 Ga. 600 ( 139 S.E. 72); Dwight v. Acme Lumber Supply Co., 183 Ga. 139 ( 187 S.E. 668); s. c. 186 Ga. 825 ( 199 S.E. 178). 6. That the judge, in instructing the jury how to ascertain where the preponderance of the evidence lies, omitted from the language of the Code, ยง 38-107, the words "the nature of the facts to which they testified," was not an error of sufficient gravity to require the grant of a new trial.
Plaintiff alleges that certain materials were furnished and used in the construction of the real property prior to the encumbrance of the property by the security deed held by Wallace's grantee, and consequently its lien relates back to a time prior to the lien recorded by Peoples Bank. It is true the lien of a materialman, if properly created and declared, attaches from the time the work under the contract is commenced, and the material becomes a part of the realty, and takes priority over the title acquired, with actual notice of the claim of lien by the subsequent grantee even if the deed be superior in time of recording to the claims of lien. Oglethorpe Savings c. Co. v. Morgan, 149 Ga. 787 ( 102 S.E. 528); Guaranty Invest. c. Co. v. Athens Engineering Co., 152 Ga. 596, 598 (6) ( 110 S.E. 873). But no equitable action has been alleged here to set aside the deed to Wallace, and at law the priority of recording controls. See Dwight v. Acme Lumber c. Co., 183 Ga. 139, 141 ( 187 S.E. 668); Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 (1) ( 21 S.E.2d 619). Wallace (provided he was a bona fide purchaser) obtained title at the foreclosure sale and this created a title free from the junior liens, bypassing them and also extinguishing the equity of redemption. See Mutual Loan c. Co. v. Haas, 100 Ga. 111 (1), 114 ( 27 S.E. 980); Atlantic Life Ins. Co. v. Ryals, 48 Ga. App. 793 ( 173 S.E. 875); Rockmart Bank v. Doster, 233 Ga. 748, 749 ( 213 S.E.2d 645). Wallace's deed would be valid until set aside by a court of equity.
They deeded the land to Pilgrim for the purpose of having the house built, intending to take title when it was completed, and they are therefore in the same situation as the vendor in Williams v. Brewton, 170 Ga. 164 ( 152 S.E. 441), except that their consent was explicit and did not arise by implication. First Federal, however, had no notice of the plaintiff's claim on June 9, 1965, when it accepted the deed to secure debt. "An unrecorded claim of a materialman's lien is inferior to a security deed on the property improved, taken without actual notice of the unrecorded claim of lien. Bennett Lumber Co. v. Martin [ 132 Ga. 491, 64 S.E. 484]; Milner v. Wellhouse, 148 Ga. 275 ( 96 S.E. 566); Oglethorpe Savings Trust Co. v. Morgan, 149 Ga. 787, 792 ( 102 S.E. 528); Picklesimer v. Smith, 164 Ga. 600, supra; Dwight v. Acme Lumber Supply Co., 183 Ga. 139 ( 187 S.E. 668), s.c. 186 Ga. 825 ( 199 S.E. 178)." Georgia State Savings Assn. v. Wilson, 189 Ga. 21 (5) ( 5 S.E.2d 14).