Maynard v. Armour Fertilizer Works , 138 Ga. 549 ( 1912 )

Lumpkin, J.

(After stating the foregoing facts.)

1. Creditors, having reduced their claims to judgment, and having had entries of nulla bona made on the executions, filed an equitable petition seeking to subject certain land ’which had been conveyed by the debtor to her two daughters, and to have the deed canceled. The presiding judge overruled a demurrer to the petition, and the defendants excepted. One of the principal contentions on the part of the plaintiffs in error is that the defendants in error had a complete remedy at law, by levying their executions; and that there was no equity in a petition which sought to set aside a conveyance made by the debtor, on the ground that it was fraudulent. This contention is unsound. Where the remedy at law is not as complete as in equity, equitable relief may be had. It has long been a recognized rule that where judgment creditors can not obtain payment of their judgments by levy and sale, and it is necessary to set aside fraudulent transactions, they may resort to a court having equitable jurisdiction. Formerly the more frequent contention advanced was that the creditor could not go into equity until after he had reduced his claim to judgment, and sometimes, it was said, not until after he had had an entry of nulla bona made. This was changed by the uniform procedure act of 1887, under which a creditor may at once proceed to obtain judgment on his claim and to have a decree subjecting property fraudulently conveyed away by his debtor. DeLacy v. Hurst, 83 Ga. 223 (9 S. E. 1052). But the enlarging of the right of a creditor without judgment did not operate to destroy the pre-existing right of a creditor with a judgment. The former argument that one without a judgment and execution could obtain no equitable relief as against fraudulent conveyances is now reversed, and the contention is made that plaintiffs who have obtained judgments are entitled to- no such relief. I omit reference to lien creditors other than by judgment. The plaintiffs in this case alleged that they had obtained judgments and had caused executions to be issued, and that the proper officer had made an entry of nulla bona thereon. This is sufficient to show that they have obtained an adjudication that they are entitled to payment and have procured executions to issue, but the levying, officer can find nothing upon which to levy. They find confronting them a conveyance made by the debtor. Should they levy upon the property, they could not compel the daughters of the debtor (the grantees in the deed) to interpose a claim, or other proceeding, under which the title could be tested and an adjudication had that the property was subject, so that it might be sold free from the cloud east over it by such deed. Should the grantees see fit to do so, they might let tlie property be sold for some small amount, and then contest the title with the purchaser. The executions of the plaintiffs amount to- a considerable sum, and it is not certain whether, under such conditions, the property would bring enough to pay them, much less other executions outstanding, the holders of which may be made parties under the invitation contained in the petition, and may make a contest for the fund.

With proper allegations, these judgment creditors might seek equitable relief, and their petition would not be demurrable on the ground that they had an ample remedy at common law by levy and sale, and were therefore not entitled to institute any equitable proceeding. Thurmond v. Reese, 3 Ga. 449 (46 Am. D. 440); Stephens v. Beall, 4 Ga. 319; Lathrop v. McBurney, 71 Ga. 815; Conley v. Buck, 100 Ga. 187, 190 (28 S. E. 97).

3, 3. There was no error in overruling the ground of the demurrer which set up that there was a misjoinder 'of plaintiffs. All the -plaintiffs had a common interest in setting aside the alleged fraudulent conveyance and subjecting the property conveyed by one of the defendants to the others as tenants in common for the payment of their claims. Neither was there any merit in the contention that there was a misjoinder of causes of action because the petition showed that one of the plaintiffs had a judgment against Mrs. L. M. Maynard and her husband, J. D. Maynard, while the others held judgments against Mrs. Maynard alone. It was alleged that J. D. Maynard was hopelessly insolvent and nothing could be made out of him. His being named as a defendant in one of the judgments, therefore, did not preclude the plaintiff who held such judgment from joining in the effort to subject property of the other defendant, or render such action a misjoinder of parties plaintiff or of causes of action.

4. Having held that the plaintiffs in execution might, with proper allegations, maintain an equitable petition for the purpose of subjecting certain property alleged to have been fraudulently conveyed by the defendant in execution to her daughters, and would not be prevented from so doing on the ground that there was an ample common-law remedy, the next question which presents itself is whether the petition contained proper allegations so as to bring it within the ruling thus made. We do not think that it did. It alleged that a conveyance was made by Mrs. Maynard to her two daughters and one to her brother, and charged that these deeds “were part and parcel of a well-laid plan to prevent the petitioners from collecting the amount due them as aforesaid,” but it nowhere alleged directly that the two daughters took any part in such plan, or had any notice of the existence of the fraud, if there was one. It showed that the deed to the daughters was dated about a year before any of the debts held by the plaintiffs were contracted, and that the deed to Shepherd bore date after such debts were contracted, but before judgments were obtained. It was alleged that “although said deeds are [not?] near each other in apparent date, yet your petitioners charge the fact to be that the said two deeds were executed at one and the same time or at all events near the same time.” Whether that time was the year before the debts to the plaintiffs were created, or afterwards, does not appear. There was some intimation that the plaintiffs doubted whether any consideration was paid by the daughters to the mother, but there was no direct allegation that such payment was not made. It was alleged that the purported consideration of $500, if paid at all, was very inadequate; but this was not a direct allegation that there was no consideration, or that the deed was in fact a voluntary conveyance. If it was intended to make such a charge, the vagueness of the allegation in regard to the time when the deed was executed becomes all the more subject to demurrer, because there is quite a difference between the making of a voluntary conveyance before a debt is created and after its creation. First National Bank v. Bayless, 96 Ga. 684 (23 S. E. 851).

5. In several paragraphs of'the petition the plaintiffs set out collateral evidential facts which the jury might perhaps believe point in the direction of fraud on the part of the grantees; but it is not good practice to plead evidence instead of directly alleging, an issuable fact. Legitimate inferences may be drawn from evidence in favor of the introducer. Such is not the rule as to pleadings. Thus, in the 67th paragraph of the petition, it is alleged: “Petitioners show that the said Myrtle and Lillie Mae Maynard have been engaged in no business whatever during the last four oi five years, so far as your petitioners are able to ascertain, and therefore have had no means for making money.” Suppose that the defendants should deny the allegations of this paragraph, what would.be put in issue? Would the issue be that the two daughters named had been engaged in no business; or would it be that the plaintiffs had not been able to ascertain that they had been so engaged ; or would it be whether, from their inability to so ascertain, they drew a legitimate conclusion that “therefore the two daughters had no means for making money?” If the plaintiffs intended to charge that the two daughters had no means of making money and had no money, or that they did not in fact pay the $500 stated as a consideration in the conveyance to them, it should have been alleged directly, and not inferentially because the plaintiffs had been unable to ascertain that the daughters had been engaged in any business. Several of the other paragraphs are of the same character. Without reciting them in full, it is sufficient to say-, that paragraphs 51, 52, 67, 68, and 69 of the petition should have been stricken on special demurrer, and the general grounds of the demurrer should have been sustained.

One ground of the demurrer undertakes to attack certain paragraphs in the petition in regard to Shepherd, and to refer to such paragraphs by number, but fails to state the numbers of the paragraphs to which reference is made, leaving them 'blank; and' we therefore give it no further consideration. It can not be said generally that all references to Shepherd were irrelevant. The other grounds of the special demurrer were without merit. ■

Judgment reversed.

All the Justices concur.