Bank of Mobile v. Tishomingo Savings Institution

62 Miss. 250

Opinion

Cooper, J.,

delivered the opinion of the court.

So far as we are advised, no other State save Pennsylvania has decided that a failure to record a written defeasance, which is separate from the instrument by which the estate has been conveyed, will nullify the record of the absolute conveyance so that the land may be subjected to sale by the creditors of the grantor who holds the unrecorded defeasance.

We decline to adopt the views of the courts of that State, not only as opposed to the overwhelming weight of authority, but also because we think the rule announced in that State clearly wrong.

We also decline to follow those decisions which declare that a mortgage in the form of an absolute conveyance is per se and conclusive evidence of a fraudulent intent on the part of the grantor and grantee. It is a circumstance to be considered in determining the question of fraud, and entitled to such weight as other circumstances surrounding the transaction may indicate ought fairly to be given to it.

An examination of the facts of the case now before us has satisfied us beyond all reasonable doubt that the dealings between McIntosh and Taylor were altogether fair, that no creditor has been defrauded nor was intended to be.

The decree is affirmed.