
    PERRY, administrator, v. REYNOLDS, guardian.
    1. Where one, to defraud his creditors, conveys and transfers his property to another, his administrator can not maintain an equitable action against the transferee to get possession of the property for the purpose of paying the creditors of the decedent.
    2. But where a petition brought by an administrator is based, not only on the claim of right to recover the property transferred under the circumstances indicated in the preceding headnote and for the purposes there stated, but also on the right to recover the property for the estate of the decedent on the ground that the latter was of such unsound mind at the time of executing the conveyance as incapacitated him to make a valid contract, the entire petition should not be dismissed upon general demurrer.
    January 12, 1912.
    Equitable petition. Before Judge Prank Park. Decatur superior court. November 19, 1910.
    
      John B. Wilson and Bussell é Ouster, for plaintiff.
    
      Will H. Krause, for defendant.
   Beck, J.

This petition was brought by E. J. Perry, as administrator of Mrs. M. J. Eeynolds, against J. E. Eeynolds, guardian ad litem of James Irwin Eeynolds. It seeks to have a deed, executed by the said Mrs. Eeynolds to the said James Irwin Eeynolds, her grandson, canceled, and other equitable relief. The petitioner bases his right to the relief sought upon two grounds: The first is that the deed was executed for a totally inadequate consideration, and was of the nature of a voluntary conveyance for love and affection; and that as the administrator of his intestate, he is entitled to recover possession of the land, which is now in the possession of the defendant, in order that he may sell the same for the purpose of paying the valid demands of creditors against the estate of his intestate; the intestate being insolvent at the time of her death, unless the deed referred to be treated as invalid and the property be decreed to be a part of her estate. The other ground is, that the decedent was, at the time of the execution of the deed, “mentally incapable of executing said conveyance, by reason of her long-continued illness and the infirmities of age, and that at the time said-deed is purported to have been made she was totally incapacitated and of such unsound mind that she was unable to make a legal and valid conveyance.” The plaintiff prayed, that, should the court find upon the trial that any consideration whatever was paid by the grantee in the deed, “then the equity over what was actually paid be sold for the benefit of the estate.” Demurrers, both general and special, were filed. The court did not pass upon the special demurrers, but granted an order sustaining in terms the general demurrer.

So much of the petition as may have for its purpose the setting aside of the deed because it was executed upon an inadequate consideration, or a consideration merely of love and affection, and that for this reason, the administrator is entitled to recover the land for the purpose of bringing the same to sale in order that the debts against the estate of the decedent may be paid with the proceeds, was clearly open to demurrer. An administrator can not recover land which has been conveyed by his intestate, though the conveyance was a voluntary deed and without consideration, merely-for the purpose of subjecting the property thus conveyed to the demands of creditors against the estate. In such an action he stands in no better situation than his intestate would have stood had she, in her lifetime, brought an action to recover the property for the purpose of using it in paying debts which might have existed against her. This precise question was decided by this court in the ease of Crosby v. DeGraffenreid, 19 Ga. 290, where it was said: “A, to defraud his creditors, transfers his property to B, and dies. His administrator files a bill against B, to get possession of the property, that he may, with it, pay the creditors. Held, that there is no equity in the bill.”

But 'if, as alleged in the petition, Mrs. M. J. Reynolds was, because of mental unsoundness, incapable of contracting at the time of the execution of the deed, after her death her personal representative had the right to bring this petition for the purpose of setting aside the conveyance. Orr v. Equitable Mortgage Co., 107 Ga. 499 (33 S. E. 708). And if the conveyance in the present case was not purely for love and affection, but some consideration, though inadequate, was paid, a decree may be molded, under the allegations of this petition and the prayers thereof, that would protect any rights which the grantee may have as to the consideration which he may have actually paid for the conveyance.

Judgment reversed.

All the Justices concur, except Hill, J., not presiding.  