dissenting.
I respectfully dissent.
1. OCGA § 18-2-22 provides: “The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void.” A judgment creditor can proceed either at law, by levying an execution on the property as though the title was not clouded by the fraudulent conveyance, see Varn Investment Co. v. Bankers’ Trust Co., 165 Ga. 694 (141 SE 900) (1928), or in equity to set aside the conveyance. See 8 EGL Debtor & Creditor, § 20 (1978 Rev.). The courts have recognized that in order to prevent equity from being outwitted or frustrated, money damages may be allowed *454under certain circumstances, such as where the fraudulently transferred property has depreciated in value or where the property has been placed, in whole or in part, beyond the reach of the court. In such a case an election must be made between these two remedies in order to prevent double recovery. See Foremost Dairy Prods. v. Sawyer, 185 Ga. 702 (196 SE 436) (1938).
In the case sub judice, however, the damages the majority would uphold were not awarded as an alternative to the equitable remedy and have no relation to the value of the property or the amount of the creditors’ debt. Rather the damages were awarded simply for the fact a fraudulent conveyance took place. Thus, the majority finds that OCGA § 18-2-22 provides not only an equitable remedy, which either restores ownership in the fraudulent transferor or makes available the monetary equivalent of the property transferred (thereby allowing the judgment creditor to reach the asset and collect his debt), but also finds that OCGA § 18-2-22 provides a remedy independent of the creditor’s debt for the fraudulent transfer of the property, which authorizes actual and punitive damages against both the fraudulent transferor and fraudulent transferee.
This remedy for damages for the fraudulent transfer itself, as opposed to damages elected because the equitable remedy was inadequate, has never been recognized by the courts of this state since the virtually unchanged language of OCGA § 18-2-22 was first enacted in 1863. See Code 1863, § 1954. Nor is this remedy inherent in fraudulent conveyance statutes. See 37 CJS, Fraudulent Conveyances, §§ 279 (b) (1), 318, 444; Miller v. Kaiser, 164 Colo. 206 (433 P2d 772) (1967), cited with approval in Jones v. Spindel, 239 Ga. 68, 71 (3) (235 SE2d 486) (1977). Rather, these damages are typically sought in concert with allegations of conspiracy, Brown v. C & S Nat. Bank, 253 Ga. 119, 120 (317 SE2d 180) (1984), or bad faith, Chambers v. C & S Nat. Bank, 242 Ga. 498 (3) (249 SE2d 214) (1978), or actual fraud. See generally Bacote v. Wyckoff, 251 Ga. 862, 865 (1) (310 SE2d 520) (1984). In their amended complaint, appellees alleged damages for injury to their peace, happiness and feelings under OCGA § 51-12-6 and damages for appellants’ bad faith and fraud. No charge was given the jury on the bad faith and fraud or on any conspiracy issue which may have been raised by the evidence. Thus only OCGA § 51-12-6, alleged by appellees, supported by the evidence, and charged by the trial court, supports the actual damages awarded by the jury. But see Jones, supra, at 71-72. However, actual damages awarded solely under OCGA § 51-12-6 will not support an award of exemplary damages under OCGA § 51-12-5, see Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (B) (216 SE2d 776) (1975), and thus the award of $65,000 exemplary damages against each appellant must be stricken.
*4552. Even assuming, for the sake of argument, that the statute does support the award of actual and exemplary damages for fraudulent conveyance as to the transferor, the statute cannot be read as extending liability for these damages to the transferee of the fraudulent conveyance. The language of the statute explicitly states that it is the “acts by debtors” that shall be fraudulent at law. Transferees are mentioned only in that their knowledge of a solvent debtor’s intent to delay or defraud a creditor must be proven in order to make an “act by debtors” fraudulent in law under OCGA § 18-2-22 (2).
In conclusion, the majority’s holding is not explicitly authorized by OCGA § 18-2-22, nor are there any cases in the 124-year history of this statutory language to support that holding. The few cases which do discuss fraudulent conveyances and damages are distinguished by the majority on the basis that they did not involve “suits on the fraud”: an unsurprising conclusion if viewed from the perspective that no such suit exists within the purview of the statute. The significance of the absence of any precedent was noted by Justice Benning in Matthews v. Pass, 19 Ga. 141, 144 (1855), who, in addressing a similar argument raised by a creditor seeking damages against a fraudulent transferee, stated, “[c]ases like this have been continually occurring ever since the birth of credit. Has there ever been a time when men were not aiding debtors to evade the payment of their debts? Yet, there is not to be found an instance of an action on the case against such men, by the creditor. If the law had been such as to give the creditor that action, should we not, at some time, have seen the creditor resorting to the action? Cases may be of such a character, that if they are without the support of a precedent, it may be almost certainly said, that it is because they are without the support of law. And this is one of them.”
Therefore, I would dissent from the decision of the majority upholding the award of actual and exemplary damages under OCGA § 18-2-22 as to both appellants and would affirm only the award of $5,000 actual damages under OCGA § 51-12-6, striking the exemplary damages of $65,000 against both transferor and transferee appellants.
I am authorized to state that Presiding Judge Banke, Judge Carley and Judge Benham join in this dissent.
Carley, Judge, dissenting.
I join Judge Sognier’s dissent in all that is said therein except that I do not believe that, within the parameters of this litigation, there exists a tort for which any money damages are recoverable. See Jones v. Spindel, 239 Ga. 68, 71 (3) (235 SE2d 486) (1977). I would reverse in its entirety the judgment for money damages entered on the verdict.
*456Decided March 20, 1987 Rehearing denied April 1, 1987 Edward E. Strain III, Andrew J. Hill, Jr., for appellants. A. Jack Kemp II, for appellees.