Booth & Co. v. Mohr & Sons , 122 Ga. 333 ( 1905 )

Evans, J.

(After stating the facts.) 1-3. The demurrer was general. Before the passage of the uniform procedure act of 1887, which is codified in the Civil Code, § 4937, a creditor without a lien, under ordinary conditions, could not first maintain an action to set aside a fraudulent conveyance of his debtor. See Haralson v. Newton, 63 Ga. 163; Comer v. Coates, 69 Ga. 491; Stephens v. Whitehead, 75 Ga. 297. The act of 1887, however, made a great innovation in the law, and now a suitor in the same action may join legal and equitable causes and obtain appropriate relief. Creditors in one suit may proceed for judgment on their debts and to set aside fraudulent conveyances made by their common debtor. DeLacy v. Hurst, 83 Ga. 223; Vaughn v. Georgia Loan Co., 98 Ga. 288. No additional grounds for the invocation of the extraordinary powers of a court of equity was thereby created, and extraordinary remedies are not available in cases where they were not applicable before the passage of the act. Broomhead v. Grant, 83 Ga. 451; Stillwell v. Savannah Grocery Co., 88 Ga. 144. Where creditors by petition seek to obtain judgment on their several demands against their common debtor, and to set aside fraudulent sales and subject the subject-matter thereof to the judgments sought, and pray for an injunction and receiver, these extraordinary equitable remedies will not be granted if the petition discloses that the plaintiffs have a complete and adequate remedy at law. Johnson v. Gilmer, 113 Ga. 1146. In the case under consideration, it would appear that the plaintiffs were amply protected by their common-law remedy of attachment against the fraudulent debtor. When this question was before the judge on the interlocutory hearing, the defendants should have urged their objection to the exercise of the extraordinary equitable powers which the plaintiffs invoked in their petition. If such objection was made and overruled by the court, exception should have been taken to the interlocutory order. If, instead of excepting to the interlocutory order granting an injunction and appointing a receiver, the defendants, agreeably to the order, dissolved the injunction and discharged the receiver by giving the bond provided for in the order, and subsequently, at the appearance term, filed a general demurrer to the petition, the general demurrer only raised the question of the right of the plaintiffs to prosecute their action for judgment on their demands and for cancellation of the fraudulent conveyances. The execution of the bond, without exception to the interlocutory order, was an acquiescence in the power of the court to pass such order; so the only question presented by the general demurrer was whether, upon the allegations made in the petition, the plaintiffs were entitled to judgment against their common debtor and to a decree setting aside the conveyances alleged to be fraudulent. This feature of the case was identical with the case of DeLacy v. Hurst, supra, where it was held that a petition of this kind was n'ot demurrable for want of equity. To the same effect, see Conley v. Buck, 100 Ga. 187 ; Kruger v. Walker, 111 Ga. 383; Rodgers v. Stern & Co., 112 Ga. 624; Evans v. Piedmont Building Assn., 117 Ga. 944, and cases cited.

4. The debtors sustained the relation of father and son. The vendee was the wife of one and the mother of the other. A few days before the institution of plaintiffs’ suit, B. J. Booth & Co. by deed conveyed to Mrs. Booth a lot of land, a town lot, stock of merchandise and all notes and accounts, and seventy-five beehives, upon an alleged consideration of |6,650. On the same day the senior member of the firm conveyed to Mrs. Booth, upon an alleged consideration of $750, certain town lots in Argyle, two mules, and farm implements. These two conveyances completely divested.the firm of Booth & Co. of all property. The consideration was Mrs. Booth’s notes for the amount of the alleged purchase-money. The firm of Booth & Co. was much involved, and the circumstances indicated Mrs. Booth’s knowledge of its financial condition. When the sale was made, it does not appear that the usual commercial stock-taking was had, but values were agreed upon in round figures. It does appear that when the terms of the trade had been agreed on, the parties were cautious to have an attorney to prepare the necessary transfers of title. Enough óf the facts has been stated to show that this was a transaction between near relatives, and that the jury could infer that the sale was made with intent to hinder and delay creditors, and the purchaser either knew or had reasonable grounds to suspect such intention. The charge of the court on the substantive law applicable to the case was free from material error, and any minor inaccuracies will not be ground for a new trial. This is especially true as the court submitted to the jury questions which embraced every material issue in the case, and the special findings of fact were strongly supported, if not demanded, -by the evidence. The failure, of the jury to answer the final question will not vitiate the verdict, as the other questions comprehended all the issues, and this was but a repetition of some of the others. The answers to the preceding questions necessarily answered this last one.

5. In the last ground of the motion for a new. trial, complaint is made that under the verdict the decree was unauthorized. -No error in the decree was assigned in the bill of exceptions. “ Error of the court in decreeing upon a verdict is no cause for a new trial, and there being in the bill of exceptions no assignment of error in the decree itself, the decree is not under review.” Denham v. Walker, 93 Ga. 497 (5).

Judgment affirmed.

All the Justices concur.