Barber v. Terrell

Trippe, Judge. 1. A judgment creditor in this state has a lien by statute on all the property of his debtor. By the act of 1818, (Code, section 1952,) a fraudulent conveyance by a debtor is null and void as to his creditors. Whenever a judgment is obtained and the creditor desires to assert it against property which his debtor has transferred on the ground of fraud, he can enforce it directly by a levy on such property, even if it were transferred before judgment. There is no necessity to institute any [149] original pi’oceeding for that purpose, to which it may be necessary to make the debtor and pui chaser parties. And this, we think, makes this case different from those wherein it has been held that property fraudulently conveyed by one before he goes into bankruptcy can only be proceeded against by the assignee.- All those cases, so far as they have been examined, .where such a holding was made were cases where the proceeding was not directly by a levy, but by bill or other process, for the purpose of vacating and setting aside the alleged fraudulent conveyance: 48 Miss., 101; 105 Mass., 136; 1 B. R., 129, 146, 162, 204; 3 Ibid., 138; 6 Blatchf., 156. That the assignee may assert the creditor’s rights against such property is not disputed, and if the creditor has proved his debt in the bankrupt court, he may not be able to proceed in his own name, or in any other way but through the assignee. But if he has not so proved his debt, and relies on his lien, and the assignee does not act, nor any step be taken in the bankrupt court to reach the property, the state courts will not interfere to prevent the creditor from seeking to condemn it, nor will they listen, in such a case, to such a transferee when he, as claimant of the property, sets up the bankruptcy of the party from whom it is proposed to be proved he obtained it fraudulently as against the attaching creditor. . 2. The sayings or declarations of a defendant in execution cannot be used in evidence in behalf of a claimant, and the memorandum and schedule which were tendered in this case were nothing more than the declarations of Davis, the debtor: 6 Georgia, 365; 12 Ibid., 505. 3. The other questions which were presented in the record are so clear that it is only necessary to repeat the points contained in the syllabus. Where an instrument is attested by witnesses, it cannot be used in evidence by simply proving the handwriting of the parly who signed it. 4. An agreement by an insolvent debtor with the purchaser of property from him, that the debtor shall remain in possession thereof during his life, is such a reservation of a benefit to the debtor as may avoid the conveyance. Certainly- such [150] a stipulation between the parties, though not inserted in the conveyance, will, if unexplained, be a badge of fraud, especially if acted on and the debtor does remain in possession. 5. On the trial of the issue whether a conveyance is fraudulent against creditors, it is competent for the plaintiff in execution to prove the pendency of suits against the debtor at the time of the execution of the deed. 6. It is not a sufficient ground to set aside a verdict and grant a new trial, that a written request was not given in charge to the jury, when the general charge included the matter contained in such request. 7. Whether the jury will give damages against a claimant is a question that appertains to every claim case. There are cases in which, though the property may be found subject, it would be wrong to give damages, but generally it is a matter so exclusively with the jury that a court would seldom interfere with their action upon it. The mere inquiry by the court when it is charging the jury, whether the parties desired the law on that question to be stated, cannot be error. Judgment affirmed.