Peachtree Bank & Trust Co. v. Atha

Full title: PEACHTREE BANK TRUST COMPANY v. ATHA et al

Court: Court of Appeals of Georgia

Date published: Oct 1, 1979

260 S.E.2d 559 (Ga. Ct. App. 1979)

260 S.E.2d 559

Opinion

58150.

ARGUED JULY 2, 1979.

DECIDED OCTOBER 1, 1979.

Cancellation of deed, etc. DeKalb Superior Court. Before Judge Peeler.

Davies Owens, Catherine G. Lynch, for appellant.

Thomas G. Crichton, for appellees.

SHULMAN, Judge.

Plaintiff-creditor brought suit to cancel and render null and void a deed to real estate from defendant-husband to his wife (also a defendant) as a fraudulent conveyance under Code Ann. § 28-201 (2). The court entered a directed verdict on behalf of defendants-appellees on the grounds that plaintiff had renewed defendant-husband's note of indebtedness subsequent to its notice of the defendant-husband's deed of conveyance to his wife. On appeal, we affirm.

The undisputed evidence produced by plaintiff itself showed that plaintiff had knowledge of defendant-husband's conveyance of the real estate to his wife, prior to the time plaintiff renewed defendant's loan. It is clear, then, that plaintiff did not rely on defendant-husband's ownership of the real estate in issue when it subsequently extended him credit. Compare Gentry v. Cowan, McClung Co., 66 Ga. 720; Gormley v. Askew, 177 Ga. 554 ( 170 S.E. 674). This being so, the plaintiff, as a subsequent creditor with notice, could not void the conveyance under § 28-201 (2). Jowers v. High Point Furn. Co., 10 Ga. App. 297 (1) ( 73 S.E. 415). The court properly directed the verdict on behalf of the defendants.

Judgment affirmed. Deen, C. J., and Carley, J., concur.

SHULMAN, Judge.

ARGUED JULY 2, 1979 — DECIDED OCTOBER 1, 1979.