Summary
In Pharr, a deed was voluntary because the claimants had not offered enough evidence to sufficiently rebut a facially valid transfer for a consideration of $5 and love and affection.
Summary of this case from In re Terry Manufacturing Company, Inc.Opinion
16912.
JANUARY 12, 1950.
Cancellation, etc. Before Judge Perryman. Wilkes Superior Court. September 17, 1949.
W. A. Slaton, for plaintiff.
Earle Norman, for defendants.
The evidence authorized the verdict for the claimant, and the complaints relative to the charge of the court are without merit.
No. 16912. JANUARY 12, 1950.
On May 11, 1949, thirteen fi. fas., each in the sum of $75, based on a judgment for alimony recovered in November, 1944, in the Superior Court of Wilkes County, in favor of Mrs. Hallie S. Pharr, were levied on described realty as property of R. H. Pharr. Mrs. Velma H. Pharr filed a claim to the property. The plaintiff filed an amendment, which alleged substantially the following: R. H. Pharr made payments of $75 a month to the plaintiff up to and including March 1, 1948. On March 18, 1948, he and Mrs. Velma H. Pharr filed for record in the clerk's office, he then being clerk, and she being his deputy clerk, a deed which on its face was dated September 15, 1945, but the actual date of execution of which the plaintiff does not know, which deed conveyed to Velma H. Pharr, among other properties, the property levied on, for a stated consideration of $5 and the love and affection R. H. Pharr had for his then wife, Mrs. Velma H. Pharr. The deed was not made for a full and fair money valuation of the property conveyed, rendered R. H. Pharr insolvent, and was intended to defeat the collection of the plaintiff's judgment, all of which facts were known to Mrs. Velma H. Pharr, and by reason of said facts, the deed was void because it was intended to defeat and defraud the plaintiff in the collection of her debt. The amendment contained a prayer that R. H. Pharr be made a party to the cause, that the deed be declared void, that it be ordered delivered up and canceled of record, and that the plaintiff have such other and further relief as may seem right and proper to the court.
When the case came on for trial the plaintiff introduced the following documents in evidence: 1. Thirteen executions successively issued, beginning with April, 1948, and extending up to the date of the levy. 2. Deed dated September 15, 1945, offered for the purpose of attacking it. 3. Judgment for alimony dated November 6, 1944. 4. County tax digests for 1946 and 1947, showing that the property was returned in Mr. Pharr's name in those years.
Charles Granade, a witness for the plaintiff, testified that the value of the property in question is and was in 1945 or 1948 about $7000.
The claimant, Mrs. Velma H. Pharr, testified in part: She and R. H. Pharr were married on August 17, 1945, and live in the house that was levied upon. At that time Pharr was clerk of the superior court, and she was working in his office. He gave the deed to her on September 15, 1945. The stated consideration of $5 and love and affection was not the entire consideration. Pharr was in terrible physical condition, had high blood pressure and diabetes. He had weighed over 300 pounds and lost down to 147. He was not physically able to do the work of the clerk's office, and she did the work for him. He had two strokes and was in bed over two weeks. When he had a stroke, she had all the work to do and she earned the money. The work she did constituted the consideration of the deed. He gave her the house and lot for the work she did. He paid her a salary of $80 per month until they were married, and after that he did not pay her a salary. The deed was executed in September, 1945, and he thereafter paid alimony of $75 per month to Hallie S. Pharr through March, 1948. After the deed was executed he paid approximately $2500 in alimony. The witness actually earned that money. Pharr was not able to earn it. The deed was not given to hinder, delay, or defraud Hallie S. Pharr or anybody else from collecting any money from R. H. Pharr. The alimony was paid nearly three years after that with money that she earned.
The defendant, R. H. Pharr, testified: When he executed the deed he had been in bad health a long time, with high blood pressure and diabetes, and finally wound up with a stroke but it was not very serious. He continued to pay alimony about three years after the deed was executed. After that he tried to get a job where he could earn the money to pay alimony. He realized for several months before being defeated as clerk that he had better be looking for something to do, but never did get any work on account of his age. The value of another house and lot that he deeded to his first wife in compliance with the judgment for alimony was $15,000 to $20,000, or approximately three times the value of the house and lot that was levied upon. The reason he conveyed the house and lot to Velma H. Pharr was that he had always paid her a very small salary, less than what she was worth, and the only way he could pay her was to give her that house and lot in lieu of a small salary and when she did not have any salary at all. He had no idea of beating anybody out of anything. He never dreamed that he would not be able to pay the alimony, and did not execute the deed for that purpose. The deed was executed in 1945, as shown thereon. The reason he did not record it earlier was he was in the clerk's office. When he saw another person was going to be clerk he put the deed on record. He was able to work practically none at that time. Dr. Willis told him he could go to the office, but to just sit around. Velma H. Pharr, the claimant, did the work. Her work was the consideration of the deed. The tax records were changed but not until the deed was recorded. He continued to receive the emoluments of the clerk's office, which were not very much different from what they were in previous years, until the first of January, 1949.
The jury returned a verdict in favor of the defendant and claimant. The plaintiff's amended motion for a new trial was overruled, and the case comes to this court for review upon her exceptions to that judgment.
Counsel for Mrs. Hallie S. Pharr insists "that in its final analysis the real issue is that the evidence does not support the verdict, and for that reason the judgment of the court should be reversed."
The Code, § 28-201, declares in part that the following acts shall be fraudulent in law: "2. Every conveyance . . made with intention to delay or defraud creditors, and such intention known to the party taking. A bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion, shall be valid. 3. Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at the time of such conveyance."
The deed in question, having recited a consideration of love and affection for the grantee and $5, was not upon its face a voluntary conveyance, but was prima facie a deed based on valuable consideration. Martin v. White, 115 Ga. 866 (1) ( 42 S.E. 279); Pierce v. Bemis, 120 Ga. 536 (1) ( 48 S.E. 128); Hollomon v. Board of Education of Stewart County, 168 Ga. 359 (1-c) ( 147 S.E. 882); Morris v. Mobley, 171 Ga. 224 (7) ( 155 S.E. 8); Glenn v. Tankersley, 187 Ga. 129 (4) ( 200 S.E. 709); Coleman v. Durden, 193 Ga. 76 (6) ( 17 S.E.2d 176); Avary v. Avary, 202 Ga. 22, 33 (6) ( 41 S.E.2d 314); Neal v. Stapleton, 203 Ga. 236, 243 ( 46 S.E.2d 130).
Whether a conveyance is in fact voluntary depends upon the intention of the parties, which is to be ascertained from the facts and circumstances at the time of its execution. Shackelford v. Orris, 135 Ga. 29 (2) ( 68 S.E. 838). The plaintiff in the present case offered no evidence on this question, other than that the value of the property was $7000, and that it was returned for taxes in the defendant's name in 1946 and 1947. However, the plaintiff insists that the evidence for the claimant, showing that the latter was paid a salary of $80 a month during the period she worked in the defendant's office, and that the deed was executed within a month after she married him, demanded a finding that the deed was voluntary. In giving the above testimony the claimant stated that the $5 and love and affection stated in the deed was not the entire consideration. If no additional fact or circumstance bearing upon such a question had appeared, the presumption of a valuable consideration would not have been rebutted. Lifsey v. Mims, 193 Ga. 780 (4) ( 20 S.E.2d 32). The evidence as to the value of the property was conflicting, and the testimony for the claimant explained why the property had been returned for taxes in the defendant's name. In these circumstances, even though the evidence to the effect that Pharr conveyed the property to the claimant because he had always paid her less than she was worth was, as contended by the plaintiff, insufficient in itself to show a valuable consideration, this fact merely constituted a failure to establish consideration over and beyond the $5 love and affection stated in the deed, and such failure to show additional consideration would not demand a finding that the presumption of a valuable consideration had been rebutted.
Furthermore, assuming the conveyance to have been voluntary, how stands the case? The uncontradicted evidence shows that the deed was executed and delivered to the claimant on September 15, 1945, and that thereafter the defendant paid the monthly installments of alimony up to and including March 1, 1948. No lien was expressly created by the judgment for alimony on real estate of the husband, and no debtor and creditor relation is disclosed other than the duty to pay alimony each month. This court has held that a judgment for permanent alimony payable in stated monthly installments, and not for a fixed gross sum, does not create a lien for future monthly installments on real estate, where no lien is expressly created upon such property in the judgment for alimony. Chero-Cola Co. v. May, 169 Ga. 273 ( 149 S.E. 895, 66 A.L.R. 1469); Wallace v. Wallace, 189 Ga. 220 ( 5 S.E.2d 580). "A voluntary conveyance made by a husband solvent at the time, to his wife and children, is binding as against creditors." Brown v. Spivey, 53 Ga. 155 (2). But even though the husband was not insolvent, still if, by a voluntary conveyance, he should deprive himself of all property, which would be subject to legal process, such conveyance, as to creditors, would be prima facie fraudulent, and it would be incumbent on the grantee to show, not only that the grantor was solvent, but that the conveyance was made in good faith, and not with the intention to hinder, delay, or defraud his creditors. Cothran v. Forsyth, 68 Ga. 560, 567; Cohen v. Parish, 100 Ga. 335 (2) ( 28 S.E. 122); McLendon v. Reynolds Grocery Co., 160 Ga. 763 (3) ( 129 S.E. 65); Betton v. Avery, 183 Ga. 559, 561 (4) ( 188 S.E. 901). These were question of fact for the jury to pass upon, and evidence that the monthly installments of alimony were paid from the date of the conveyance (September 15, 1945) up to and including March 1, 1948, during which time the defendant held the office of clerk of the superior court, together with positive testimony that the deed was not made to hinder, delay, or defraud creditors, was sufficient to authorize the jury to find that the grantor was not insolvent at the time the deed was executed and that the conveyance was not made to defraud the plaintiff. Accordingly, there is no merit in the contention that the evidence does not support the verdict.
The first special ground of the motion for new trial complains of the charge: "That a husband may be indebted to his wife, and that said indebtedness may be bona fide. It is entirely a question for you to determine whether it is or not. And I charge you that, if there is a bona fide indebtedness of the husband to the wife, he has the right to convey the property to her where it is not done for the purpose of hindering, delaying, or defrauding creditors, and if it was done for the purpose of hindering, delaying, or defrauding creditors and such intention was not known to her, it would still be a good conveyance." This charge states a sound abstract principle of law (Code, § 28-201 (2); Booker v. Worrill, 55 Ga. 332 (1); Turner v. Woodward, 133 Ga. 467, 66 S.E. 160) and is not subject to the criticism that the charge was not authorized by the evidence, that it submitted to the jury an issue not supported by the evidence, and that under the facts the charge was confusing to the jury.
Special ground 2 complains because the court charged "that, unless the property of a person, whether real or personal, tangible or intangible, leviable or non-leviable, is insufficient in value to discharge all of his debts, he can in no proper sense be termed as insolvent." The above language appears to have been taken from Keeter v. Bank of Ellijay, 190 Ga. 525, 526-527 ( 9 S.E.2d 761). While it is not always proper for the court to charge the jury in language used in one of the decisions of this court ( Hogan v. Hogan, 196 Ga. 822 (4), 28 S.E.2d 74, and citations), nevertheless the charge excepted to was authorized by the evidence, and was not subject to the criticism that the evidence shows that the grantor conveyed to his wife substantially all of his property.
Special ground 3 complains of the charge: "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. A voluntary deed from a husband to his wife, executed and delivered in good faith and at a time when he was entirely solvent, passes title to the wife, and the lien of a judgment subsequently obtained against the grantor did not attach to the property thereby conveyed, although such judgment was rendered before the deed was recorded." This charge states correct principles of law (Code, § 28-201 (1); Lytle v. Black, 107 Ga. 386 ( 33 S.E. 414); Hadden v. McQueen, 138 Ga. 406, 75 S.E. 333), and is not subject to the criticism that it was not adapted to the issues in the case.
Special ground 4 complains because the court failed to charge, without request, "the principle of law, that if a husband, for an insignificant consideration, conveys a large amount of property to his wife, so that the conveyance rendered the husband insolvent, such deed would be void as against creditors, because the effect of such a conveyance would be to hinder, delay, or defraud creditors." The court instructed the jury: "If you believe from the evidence that the wife was a creditor of the husband, and he conveyed property to her of a value grossly in excess of the amount due her, then you should find in favor of the cancellation of the conveyance." If further instructions were desired on the above question, an appropriate request should have been made therefor.
It follows that the court did not err in overruling the defendant amended motion for new trial for any reason assigned.
Judgment affirmed. All the Justices concur.