Bank of Wrightsville v. Powell

Gilbebt, J.

1. The year’s support provided for under the Civil Code (1910), § 4041, must be set apart "from the estate” of the deceased husband or father. Summerford v. Gilbert, 37 Ga. 59 .

2. A deed made to defraud creditors, though void as to them, is good between the grantor and the grantee, and the former after executing such deed has no title to the property thereby conveyed; and therefore the same can not be set apart as a year’s support for his widow. McDowell v. McMurria, 107 Ga. 812 (2) ( 33 S. E. 709 , 73 Am. St. R. 155 ), and cit.

3. Where land has been conveyed for the purpose of defrauding creditors, and a creditor has obtained judgment against the grantor, and a fi. fa. . issuing on said judgment has been levied on the land, and a claim has been interposed by the grantee under the deed, and on the trial of such claim the property is found subject to the fi. fa., the judgment finding the property subject, properly construed, adjudicates the deed to be null and void as to the creditor, but not void as between parties to the deed. McDowell v. McMurria, supra.

4. It follows from the rulings above that the grantor, under the verdict and judgment in the claim case, did not recover anything. The judgment creditor recovered title to the land for the purpose of applying the same to the payment of his judgment. All interest in the land formerly possessed by the grantor remained in the grantee. The grantor having died subsequently to the execution of the aforesaid deed, the land conveyed was not part of the estate of the deceased and could not be set aside as a year’s support.

5. Under the agreed statement of facts, the court erred in directing a verdict holding that a year’s support had been legally set aside in the *292 land, and that the land was not subject to the fi. fa. of the Bank of Wrightsville. ' Judgment reversed.

No. 5511. November 24, 1926.

All the Justices concur.

J. L. Kent, for plaintiff. E. L. Stephens, for defendant.