Opinion
19090.
SUBMITTED SEPTEMBER 14, 1955.
DECIDED OCTOBER 13, 1955.
Cancellation. Before Judge Perryman. McDuffie Superior Court. July 12, 1955.
Stevens Stevens, for plaintiff in error.
T. Reuben Burnside, contra.
The allegations in the present petition — to the effect that the conveyance, which was made a few days after the decree for alimony was obtained, stripped the husband of all his property and left him insolvent, and that the husband made the conveyance with intent to defraud the wife in collecting the payments for the three minor children, which intent was known to the grantee or that the grantee had reasonable grounds to suspect it — were sufficient, as against the general and special grounds of demurrer interposed by the defendant, to set forth a cause of action for cancellation; and the trial court did not err in overruling said grounds of demurrer.
SUBMITTED SEPTEMBER 14, 1955 — DECIDED OCTOBER 13, 1955.
Mrs. Laverne McGahee filed in McDuffie Superior Court, against Buford E. McGahee and John Wood, a petition, which as amended alleged substantially the following: The petitioner filed in said court against her husband, Buford E. McGahee, a suit for divorce, custody of their three minor children, temporary and permanent alimony, and to enjoin the defendant from disposing of described realty — which was scheduled as property belonging to him — pending the trial. At the September term, 1954, the jury returned a verdict in favor of the petitioner, and required the husband to pay $20 per month for the support of each child until each became 18 years of age, or became self-supporting. A final decree was duly entered. The husband gave petitioner much trouble about the payments, was late in many instances, argumentative, rough and annoying, but finally paid the amounts due through December 10, 1954, and on January 10, 1955, when another payment of $60 was due, he paid her $55. No further payment was made, but he, as he had threatened to do, ceased said payments and has absconded. On September 6, 1954, as the petitioner and her husband were leaving the courthouse immediately after the divorce decree was rendered, he told the petitioner that he would not make the payments required of him for the support of their minor children, and every time he made a payment he said that he would not pay anything more. At the time the final decree was entered in the divorce case, her husband owned a described tract of land containing one hundred acres, being the same land which was scheduled in the divorce suit, and on which petitioner and her husband resided while they lived together as husband and wife. On September 22, 1954, petitioner's husband by warranty deed, reciting a consideration of $1,500 conveyed the land which was worth $2,600 to his brother-in-law, the defendant John Wood. The deed was made by the husband with the intention to defraud petitioner and her minor children in defeating the payments of alimony, which intention on the part of the husband was well known to the defendant Wood, at the time and before the deed was executed, or he had reasonable grounds to suspect such intention. The defendant Wood thereby became a party to the husband's scheme and the consideration of $1,500 named in the deed, if paid at all, was a grossly inadequate consideration. The purported sale leaves the husband without any property out of which petitioner can enforce the payments required in the final decree, and the proceeds of the sale, if paid to the husband, have been converted by him to his own use and he is insolvent. The deed from the husband to the defendant Wood stripped the husband of all his property, and he ceased to make the payments and absconded and conceals himself. The realty in question is located in McDuffie County, and there has been no change in the status of the minor children since the decree, they being in the custody of the petitioner. The prayers were: that the deed, dated September 22, 1954, be canceled and set aside as to the petitioner and her minor children; that the property be decreed to be subject to the petitioner's final decree, and the court enter such decree as will render the realty subject to both past and future payments required by the final decree; that process issue; and for general relief.
To the petition as amended the defendant Wood filed a demurrer upon general and special grounds. The trial court overruled the grounds of demurrer, and he excepted.
"Whenever one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain, the relation of debtor and creditor exists between them." Code § 28-101. And "Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description, had or made with intention to delay or defraud creditors, and such intention known to the party taking," shall be fraudulent in law against creditors and others. Code § 28-201 (2).
Under the above Code sections, a wife may bring an equitable proceeding to cancel and set aside a conveyance of property made by her husband with intent to defeat the recovery by her of alimony, and such a proceeding will lie against a grantee of the husband, who took with knowledge of such intention or with reasonable grounds to suspect such intent. Wood v. Wood, 166 Ga. 519 ( 143 S.E. 770); Stephens v. Stephens, 168 Ga. 630 ( 148 S.E. 522); Peoples Loan Co. v. Allen, 199 Ga. 537, 559 ( 34 S.E.2d 811).
Applying the above principles, the allegations in the present petition — to the effect that the conveyance, which was made a few days after the decree for alimony was obtained, stripped the husband of all his property and left him insolvent, and that the husband made the conveyance with intent to defraud the wife in collecting the payments for the three minor children, which intent was known to the grantee or that the grantee had reasonable grounds to suspect it — were sufficient to set forth a cause of action for cancellation; and the trial court did not err in overruling the general grounds of demurrer. In so far as there was any merit in the grounds of special demurrer, they were met by amendment.
A different result is not required by Code (Ann.) § 30-112, relating to the filing of lis pendens notice, for the reason that, taking the allegations of the petition to be true — as must be done on general demurrer — the defendant was not an innocent purchaser.
Judgment affirmed. All the Justices concur.