rectly after the sale, saw Ware wink at | bank for $900, and then Ware made John John N. They then got together, and Ware made the deed to John N. He (James M.) had a talk with Ware about 20 minutes after the sale; did not offer Ware a $100 profit, but asked Ware if he would take $100 profit; but Ware said he had agreed to let John N. have it. After Ware had made this statement to James M., the latter openly stated, in the hearing of the crowd, that the sale was a fraud, and that he did not mean to abide by it, but would contest the matter in the courts. Ware then said, if the heirs would get together and agree among themselves, he would make the deed to whomever they said; but John N. said, "No." James M. knew nothing about the making of the deed; had nothing to do with it; was not asked to sign the deed; and did not know, until the time of the trial, that a deed was ever signed at all.

N. a deed, and John N. gave him the check, and $50 besides, and Ware destroyed the check. John N. had not seen Ware, to talk to him, and had had no conversation with him for several years before the sale took place. They had had some trouble, and did not have any dealings whatever. Ware had no expectation of buying the land, but made a bid simply to start the bidding. After the land was knocked off to Ware, and after he had agreed to let John N. have it at $50 advance, as above stated, James M. asked Ware if he would take $100 for his bid, but he told James M. what he had said to John N., and that therefore he could not let James M. have the land, but, if all the heirs would agree among themselves about the matter, he would make a deed as they might desire. Ware knew that he had a bargain in the land, but, after the sale was made, heard The testimony introduced by defendants James M. making some threats, from which tended to show as follows: James M. and he was afraid there might be a lawsuit John N. went together, and obtained an or-growing out of it, and hence he was willing derfor sale. It was too late to obtain an or- to sell at a less profit than he would, perder to sell in January, and they could not haps, otherwise. Camp cried the land a sell earlier than the first Tuesday in Feb-sufficient length of time for anybody to ruary. They agreed that they would ob- bid that wanted to,-as long as common tain the order, and then advertise a sale in such cases,-and conducted the sale, as as soon as possible. With that under- an auctioneer, in a proper manner. Adstanding, James M. went home; and, as ministrators often get persons other than soon as an order was obtained, John N. auctioneers to sell for them. They seldom advertised the land to be sold on the first employ an auctioneer. James M. gave noTuesday in February at Watkinsville. tice that he would not sign the deed, and The administration was in Clarke county, Ware simply took John N.'s deed. As he Oconee having been cut off from Clarke. It was going to deed the land to John N., he was agreed between the administrators did not care whether James M. signed it that John N., being in Oconee, should at- or not. John N. has never settled with tend to the whole matter. Before the day of the heirs, nor made any return of the sale, sale, John N. spoke to Camp, who was not and he never has paid anything to any of an auctioneer, but who, John N. knew, had the heirs. They have never called for it, been a bailiff, and was accustomed to such and he has had use of the land ever since work, to go down and sell the land. the sale. The trial occurred on January There was no collusive arrangement be- 31, 1889. The land has been given in at five tween John and Camp, whatever. On the dollars per acre for several years. day of sale, John N. went to Watkinsville and found James M., and a number of heirs at law there. He heard no complaint. He put up the land, after reading the advertisement, and announced the terms of sale, and told Camp to sell it. Camp cried the land for some time, and nobody bid. After a while, Ware came up, and Camp called to him to give him a bid to start the sale, whereupon Ware made the only bid that was made. There was no collusion or agreement between John N. and Ware. In fact, they were unfriend-in error. ly, and hardly on speaking terms. Camp cried Ware's bid for some time,-several BLECKLEY, C. J. The facts are minutely minutes: started to knock the land off to set forth in the official report. There were Ware, and Ware asked him to continue to two administrators, and they had joined cry it, which he did, and it was finally in procuring an order for a sale. One of knocked off to Ware. Ware did not want the them caused the land to be sold in the presland, though it sold cheap, as he had other ence of the other. It was bid off by a use for his money. The land was worth five third person (Ware) for about half its valor six dollars per acre. Land usually sells ue. He was immediately offered by the cheap at public sale. After the sale, John selling administrator $50 for his bid, and N., having heard Ware say during the sale at once agreed to take it. When this barthat he did not want the land, carried Ware gain was made, Ware had not acquired to one side, and told him that he would title to this land. It still belonged to the take the land off Ware's hands. Ware estate. He had neither paid for it nor agreed to allow him to take it for $50 ad- taken a conveyance. The transaction, vance, and John N. agreed to give it. He therefore, was not essentially different went to an office, and John N. made Ware from a purchase by an administrator at a deed, Ware giving John N. a check on a his own sale. The administrator did purv.10s.E.no.14--32

The jury found that the two deeds in question be delivered up and canceled, and that a new sale of the property be ordered by administrators; and defendant moved for a new trial, on the ground that the verdict was contrary to law, evidence, the principles of equity, and the charge of the court. The motion was overruled, and defendant excepted.

Thomas & Strickland, for plaintiffs in error. J. P. Brooke, H. C. Tuck, A. P. Hendley, and A. J. Cobb, for defendant

to alight before the train resumes its journey; it not appearing that the conductor, or other proper agent, knew that he had come aboard, nor that make signals for the benefit of such visitors. This there was any usage or custom to give notice or applies to a father who, in conformity to a known custom of travel, attends his daughter, at her request, under circumstances rendering such attendance necessary, to aid her and her infant children If, while he is in the car, the train starts before he to enter the train and secure seats as passengers. has finished his undertaking, he must either remain until he can make known his wish to get off, or take the risk of alighting while the train is in motion.1

(Syllabus by the Court.)

Error from superior court, Walton county; HUTCHINS, Judge.

Rogers & Upshaw, for plaintiff in error. J. B. Cumming and H. D. McDaniel, for defendant in error.

chase before the sale was consummated. | off, has no right to notice, by signal or otherwise, He raised Ware's bid $50, giving Ware the benefit of the advance, instead of giving it to the estate. It would have been better for the estate if he had bought directly from himself, rather than through Ware. What followed between them, except as to the $50, was an empty formality, colored with ink for the purpose of investing the administrator with the appearance of a paper title. He conveyed to Ware, who gave him a check upon a bank for the amount of the bid. Then Ware conveyed back to him, took up the check, destroyed it, and received $50, which was the only money really passed between the parties. The administrator made no return of the transaction, and has never made any payment for the land to anybody, except the $50 to Ware for the privilege of taking the benefit of his bid. The co-administrator refused to join in any conveyance, and for that reason full legal title was not passed. BLECKLEY, C. J. The material allegations 2 Amer. Law of Administration, by Woer- in the declaration were these: "Plaintiff ner, 1068; Wasson v. King, 2 Dev. & B. 262; bought a ticket for his daughter and two McRae v. Farrow, 4 Hen. & M. 444; Hal- children, one three years, the other eight bert v. Grant, 4 T. B. Mon. 581. After months, old, from Social Circle to Atlanta. long acquiescence on the part of the heirs When the train known as the 'Fast Mail' at law, the deed of one administrator to reached Social Circle, he aided her and the another has been upheld as title. Newton children to get on the train, and went in v. Beckom, 33 Ga. 163. Here the heirs de- the car, to see that she and they were comclined to acquiesce, and filed their comfortably seated. This it was proper for plaint within less than six months after him to do, on account of the age of the chilthe defective sale. The land, therefore, re- dren, and because his daughter had no asmained both legally and equitably the sistant, and was carrying a couple of bunproperty of the estate to which it previous- dles or boxes, and because the conductor ly belonged, and these deeds, the first from did not offer to aid her. Plaintiff did not one of the administrators to Ware, the have a reasonable time to seat his daughsecond from Ware back to him, were mere ter and children and get off the train beclouds upon the real title. The outward fore it started. Before he could seat her, and visible circumstances of the transac- and without allowing him a reasonable tion went strongly to establish the whole time to do so, and get off, the train sudcase of fraud set up by the complaint. denly started, without blowing the whistle The Code, § 2751, says that fraud being in of the engine, or otherwise giving him noits nature subtle, slight circumstances may tice that it was about to start. So soon be sufficient to establish it. Here the cir- as he discovered the train was in motion, cumstances were more than slight. The and while it was moving very slowly, he jury considered them sufficient. It is pos- started to get off. He walked out of the sible that the combination, prior to the car onto the platform, then stepped down sale, between the administrator and auc- to the bottom step, and, whilst the car was tioneer, and between the administrator and moving very slowly, stepped off upon the bidder, which is alleged in the complaint, ground, as he thought, but it may have may not have existed. Whether it existed been upon something negligently put or not, the deeds ought to be set aside. In there by the company. He used all ordiAlexander v. Alexander, 46 Ga. 290, Judge nary and reasonable care and diligence in MCCAY says: "The purchase by the trus- stepping from the train, was in the full postee is prima facie a fraud; and, however session of his physical vigor, and had no the formal legal title may be, he holds the baggage to incumber him; and his getting property as trustee, under the implied un- hurt was the result of no fault on his part, dertaking which the law casts upon but was the result of negligence on the him." And see Willis v. Foster, 65 Ga. 82. part of the company in not giving him a If there was no fraudulent combination reasonable time to get on and off the train, prior to the sale, the result, legal and in starting without giving notice, in not equitable, flowing from the other facts of providing proper persons or assistants to the case would be the same, and so enough aid passengers on the train, in fixing the was proved to warrant the verdict. Judg-stop at the station too short, in having a ment affirmed.

COLEMAN V. GEORGIA RAILROAD & BANK-
ING CO.

very rough right of way by throwing in round rocks, in suddenly jerking the cars, as he was about to step off, and in other respects." By amendment to the declara

'On the subject of negligence in alighting from and boarding moving trains, and the duty of car

(Supreme Court of Georgia. Nov. 27, 1889.) CARRIERS-INJURY TO PERSON ASSISTING PASSEN-riers as to stopping a reasonable time to allow pas

GER.

One who gets upon a fast mail train during one of its fixed stops at a station, where these are too short for him to transact his business and get

sengers to alight, see note to Railroad Co. v. Crunk, (Ind.) 21 N. E. Rep. 31, cited in opinion; Railway Co. v. Williams, (Tex.) 8 S. W. Rep. 78, and note; McDonald v. Railway Co., (N. Y.) 22 N. E. Rep.

science, nor was it a matter of any concern to him whether Parker had other property which might have been levied on or not. Indeed, it does not appear that he knew that Parker had other property; there being no evidence that this information was embraced in the notice given by Boyd at the tax-sale. But what concern did Wilson have in the matter any further than to take care that he was buying under a lien and execution to which the property he bought was subject? If Boyd had desired to protect his previous purchase, he might have done so, either by outbidding Wilson at the tax-sale, or by redeeming within a year after that sale was made. Beyond all question, the court erred in decreeing that the deed to Wilson be canceled and set aside. Judgment reversed.

was levied by a constable upon the same no matter how little it cost him. The noundivided fourth of the same lot, together tice of sale to Boyd did not affect his conwith other realty, all of which was pointed out by Parker, and seized as his property. This levy having been returned to the sheriff by the constable, the property embraced in it was sold by the sheriff on the first Tuesday in April, 1887, each parcel being sold separately, and the whole bringing less than the amount of the tax fi.fa. Boyd was present, and gave notice that he claimed, under his previous purchase, and the deed made in pursuance thereof, the undivided fourth embraced therein. This notice was given in the presence and hearing of Wilson, who nevertheless became the purchaser of the same undivided fourth at the taxsale, the price paid being $1.50, and took a deed from the sheriff accordingly. At the time of this sale to Wilson, Parker had, and still has, sufficient other property in the county to satisfy the tax fi. fa. Other realty was in fact seized and sold under the fi. fa. subsequently, producing a fund sufficient to pay off the balance due upon it, and leaving a surplus of $14.51. On the foregoing facts, Boyd filed his bill in September, 1888, against the sheriff and Wilson, alleging that at the time of the tax-sale they both well knew that the title had passed out of Parker into him, (Boyd,) and 2. Grantor and grantee in the deed both being that all liens had been divested by virtue witnesses, if the former swears he gave notice to of the prior sale to him. He prayed that the latter beforehand of his fraudulent purpose, the deed from the sheriff to Wilson be can- the latter, by denying in rebuttal other statements celed and set aside as a cloud upon his title; in the testimony of the former, but not this, virand the judge, to whom the case was sub-tually admits the fact of notice, there being no exmitted without a jury, decreed at the hear-planation of the failure to deny such notice. ing that said deed be canceled and annulled, to which decree Wilson excepted.

PALMOUR et al. v. JOHNSON. (Supreme Court of Georgia. Dec. 9, 1889.) FRAUDULENT CONVEYANCES.

1. An absolute deed, made with intent to delay or defraud creditors, though made also to secure a takes it with notice of the fraudulent intention. debt, is void as against creditors if the grantee

(Syllabus by the Court.)

Error from superior court, Hall county; WELLBORN, Judge.

Perry & Dean, for plaintiffs in error. W.J. Pike and G. H. Prior, for defendant in error.

66

1. There was no charge of fraud, or of fraudulent combination to seize and sell the property in controversy for the payment of Parker's taxes. The theory of the bill seems to be that the prior sale to Boyd divested the tax-lien, but this theory is al- BLECKLEY, C. J. 1. By Code, § 1952, ertogether erroneous. Nothing can be plain-ery conveyance of real or personal estate, er than that the lien of the state and county made with intention to delay or defraud for the taxes of 1886 was not divested by the creditors, if such intention be known to the sale made in November of that year, under party taking it, is void as against such an execution from the superior court. Code, creditors; and either notice or grounds for §§ 812, 1973; Gledney v. Deavors, 8 Ga. 479, reasonable suspicion will be treated as 11 Ga. 79, 86; Stokes v. State, 46 Ga. 412; equivalent to knowledge. An absolute Railroad v. State, 63 Ga. 483; Freeman v. deed, made as a security for a debt, is withAtlanta, 66 Ga. 617; Verdery v. Dotterer, in this rule. A fraudulent conveyance 69 Ga. 194. cannot stand against creditors, whether made to secure a debt or not. The conveyance must be pure. It must be made bona fide, and with no purpose known to, or suspected by, the creditor to hamper and entangle the property as against other creditors for the sake of hindering or delaying them. If made partly to secure a debt, and partly to hinder, delay, or in any way defraud other creditors, and the creditor taking the deed has knowledge of this latter intention, or grounds for reasonable suspicion, no title will pass as against the other creditors. The morality of this spe cies of conveyance must be as high as that of any other, but need not be higher. A conveyance to secure must be in all respects as clean and clear as a conveyance for permanent ownership." Phinizy v. Clark, 62 Ga. 626, 627.

2. We have already said that there was no express charge of fraud, and certainly the facts of the case do not of themselves amount to fraud. Any interest which Parker owned in this lot of land on the 1st of April, 1886, was subject to pay his taxes for that year. It was the privilege, if not the duty, of the constable to levy upon any property that was so subject which Parker pointed out. Code, § 891. It was his duty to return the levy, the same being upon land, to the sheriff, (Id. § 888;) and after such return the sheriff was not at liberty to decline to sell because he had previously sold to Boyd under another fi. fa., the lien of which was inferior to that of the tax fi. fa. If the constable levied lawfully, and the sheriff sold lawfully, it could not be a fraud for Wilson to buy, although he paid a small price. If he was the highest and best bidder at a fair and lawful sale, he was entitled to the benefit of his purchase,

2. In the present case, the claimant was a witness in her own behalf. She was present at the trial, and examined twice,-once

before her brother, the defendant in fi. fa., | vor, obtained in another court or in anothand maker of the conveyance to her, was er suit, though on the same debt or deexamined, and once afterwards. She stat-mand, the measure of the liability of the ed in her first examination that he was sceurity on appeal. The latter is entitled not in failing circumstances when the deed to stand upon the terms of his contract, was made, and if he owed money, she did and they obligate him to abide the judgnot know it He testified that he told her ment after its rendition in the specific case the crops were bad, and that he expected in which the appeal was entered, and not to get into a little trouble, and tnat he the judgment rendered in some other case. would have to make a deed to her to se- If, for any cause, the opposite party cancure a home for her and their mother, and not or will not bring that case to a final make his creditors hold off, and give him a hearing and disposition, so as to recover showing to pay his debts; and that she in the same some amount as condemnation agreed for him to make it in her name, etc. money, it is his misfortune; for there is no When she came to rebut his evidence in her such thing as obtaining judgment against second examination, she did not deny that the security on the appeal-bond without he made this statement to her, although first or simultaneously obtaining judgment she contradicted him on other parts of his in that identical case against the principal, testimony in several particulars. The fair or his representative. Here the plaintiff implication is that she failed to deny this thought proper, because he was enjoined part of his statement only because she from proceeding in this action at law, to could not deny it truthfully It certainly carry his demand before a court of equity, called for contradiction if it was not true, and have it there allowed. Doubtless that and if true, it put her upon notice of his in-court, if he had applied to it for leave and tention in making the deed Though she may not have known that he owed any debts, she ought to have known it, or strongly suspected it, if he told her that he expected to get into trouble, and wished to make a deed to hold off his creditors, and to secure her and their mother a home. Upon another trial, this element of the case, as well as the others, ought to be reconsidered and thoroughly investigated. We think a new trial should be had, and that the court erred in not granting it. Judgment reversed.

PLANTERS' & MINERS' BANK V. HUDGINS.
(Supreme Court of Georgia. Dec. 9, 1889.)
APPEAL-SURETY IN APPEAL-BOND-DEATH OF
APPELLANT.

shown cause, would have granted him permission to prosecute this case, for the purpose of fixing the condemnation money to be recovered therein. But whether it would ornot makes no difference as to the liability of the security. He, as we have already said, was entitled to stand upon his contract. Odell v. Wootten, 38 Ga. 224.

2. There was no error in dismissing the case at the instance of counsel representing Hudgins, the security on appeal, as the plaintiff declined to accept a continuance, to give opportunity for having the estate of the deceased appellant represented, and for making such representative a party to the action. Judgment affirmed.

WOOD et al. v. WOOD.

(Supreme Court of Georgia. Dec. 9, 1889.) CONTEMPT-JUDGMENT AGAINST EXECUTOR.

1. The condemnation money for which the surety on appeal is liable, is that which is recovered in the case on the appeal trial. If, by reason of injunction, death, or other cause, no trial of the 1. Imprisonment for debt being abolished, atcase is or can be had as to the appellant, the sure-tachment for contempt is not a remedy for obligty is not subject for a breach of his bond. He is liable only upon a judgment rendered against the principal or his representative, in the case in which the appeal was entered.

2. If, after the death of the appellant and the discharge of his executrix, the plaintiff will not accept a continuance to have the appellant's estate represented, and the representative made a party, the court may dismiss the case on motion of counsel representing the surety on appeal.

(Syllabus by the Court.)

Error from superior court, Bartow county; MILNER, Judge.

John W. Akin, for plaintiff in error. A. S. Johnson, for defendant in error.

BLECKLEY, C. J. 1. The obligation of a security on an appeal-bond is for "the eventual condemnation money." Code, § 3616. He is bound "for the judgment on the appeal." Id. §3621. The eventual condemnation money is that which is recovered in the identical case in which the appeal is taken. Lockwood v. Saffold, 1 Ga. 72. The judgment for which he is bound is therefore a judgment to be rendered in that case. Without a recovery against the principal, or his legal representative, there can be none against him. The opposite party cannot make a judgment in his fa

ing the payment of a mere debt from the executors to a legatee, adjudged upon citation to account before the ordinary under section 2598 of the Code.

2. Though actual fraud by the executors might render them subject to attachment, such fraud would have to be alleged upon the record, and be the subject of direct adjudication.

(Syllabus by the Court.)

Error from superior court, Murray county; MILNER, Judge.

W. K. Moore and B. Z. Herndon, for plaintiffs in error. Trammell Starr and R. J. & J. McCamy, for defendant in error.

BLECKLEY, C. J. 1. Since the abolition of imprisonment for debt by the constitutions of 1868 and 1877, we think the sounder and better construction of section 2599 of the Code, touching the enforcement of judgments rendered by the ordinary against executors and administrators on citations to account, is that mere money liabilities, where no specific fund is involved, are enforceable only by execution against the property, and not by attachment against the person. The general money assets of an estate in the hands of a representative bear interest after the first year, and are therefore expected to be used, loaned out, or invested by the representative, and not