Burks v. Moody

106 So. 582, 106 So. 528, 141 Miss. 370, 1926 Miss. LEXIS 429

• Court: Mississippi Supreme Court
• Decided: January 4, 1926
• Docket: No. 25272.
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

The appellee recovered a judgment at law against J. A. Burks, Sr., and J. A. Burks, Jr., for four hundred dollars and costs, and thereafter filed a bill of complaint in the court below, setting forth such judgment and alleging that, while the suit on which the judgment rendered was pending, J. A. Burks, with the intention to hinder, delay, and defraud the appellee in the collection of the judgment when rendered, conveyed certain land to J. A. Burks, Jr., and certain other land to his wife, E'. J. Burks, and prayed that these deeds be canceled, and the property conveyed thereby be subjected to the payment of the judgment sued on. All three of the Burks were made parties defendant to the bill.

According to the evidence, the conveyance to J. A. Burks, Jr., was made simply to correct an error in a deed that had been made to him by J. A. Burks, Sr., more than ten years previously, and the land conveyed thereby was the homestead of J. A. Burks, Jr., and that he had resided thereon for more than ten years prior to the execution of the deed complained of. It further appears from the evidence that a portion of the land included in the deed from J. A. Burks, Sr., to his wife was his homestead. The court below declined to set aside the deed from J. A. Burks, Sr., to J. A. Burks, Jr., and also declined to set aside the deed from J. A. Burks, Sr., to his wife in so far as it conveyed his homestead, but did set it aside in so far as the other land was therein conveyed, and ordered such land sold and the proceeds thereof applied to the appellee’s judgment. The court also awarded a personal decree against J. A. Burks, Sr., and J. A. Burks, Jr., for the amount of the judgment sued on, interest, and costs incurred in the suit in which the judgment was rendered. The only error assigned is the cancellation by the court below of the deed from J. A. Burks, Sr., to his wife, in so far as it conveyed land other than his homestead. The appellee’s main contention is that the deed from J. A. Burks, Sr., to his wife was made after the claim on which the judgment at law was ren dered arose, and therefore the deed is void under section 2522, Code of 1906 (Hemingway’s Code, section 2056), which provides that:

“A transfer or conveyance of goods and chattels, or lands, or any lease of lands, between husband and wife'., shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be; and possession of the property shall not be equivalent to filing the writing for record, but, to. affect third persons, the writing must be filed for record.”

This statute has no relevancy here, for the conveyance in question was acknowledged and filed for record before the appellee’s judgment was rendered and before she could acquire thereby any lien on the land. A conveyance between husband and wife, which complies with this statute, is valid or not for the same reasons that would render it valid or not were it between other persons. Kaufman v. Whitney, 50 Miss. 109.

The appellee’s other contention in this connection is that the deed was made in order to hinder, delay, and defraud the appellee in the collection of her judgment, but, if it was in fact made for that purpose, the evidence fails to disclose it, and the deed, should not have been canceled. ' The appellee rested her case in this connection on the deed itself, the recited consideration of which is one thousand dollars, and the evidence of J. A. Burks that, while the suit at law was pending, it (the suit) was discussed by his father, his mother, and himself. The recital in the deed of the payment of one thousand dollars is prima facie true (Hiller v. Jones, 66 Miss. 636, 6 So. 465; Virden v. Dwyer, 78 Miss. 763, 30 So. 45), and the discussion among themselves of the suit on which the judgment sued on was rendered by the defendants therein was perfectly natural and in this connection proves nothing.

March 1, 1926.) [107 So. 279.]

Counsel for the appellee ask that a judgment be rendered here against the sureties on the appeal bond for the amount of the personal judgment rendered in the court below against J. A. Burks, Sr., and J. A. Burks, Jr., on the theory that the appeal bond superseded the entire decree. In this counsel are in error, for the bond, which the reporter will set out in full, limits the supersedeas therein to the collection of the money decreed to be due the appellee by the sale of the property here involved and specifically refers to the section of the Code which provides for a bond to supersede a decree for the sale of real property rendered in a case appealed to this court.

The decree of the court below will be reversed in so far as it subjects the property conveyed by J. A. Burks, Sr., to his wife, E. J. Burks, to the satisfaction of the appellee’s judgment, and to the extent that the bill prays therefor, it will be dismissed.

Reversed.

On Suggestion of Error.

This case was decided on a former day, and the decree of the court below was reversed in so far as it subjected the property conveyed by J. A. Burks, Sr., to his wife to the payment of the judgment recovered by the appellee ag’ainst J. A. Burks, Sr., in a suit at law. That i suit was pending when the conveyance from J. A. Burks, Sr., to his wife was executed and recorded, but no judgment therein had then been rendered.

Counsel for the appellee have filed a suggestion of error, in which they reargue their contention that, because-, this deed was executed and recorded after the claim on which the appellee’s judgment was rendered arose, it is invalid as against the appellee under section 2522, Code of 1906' (section 2056', Hemingway’s Code), and they again cite in support of that contention the case of Carberry v. Lann Hardware Co., 88 So. 769, 126 Miss. 293. This case has no relevancy here, nor has the case of McCrory v. Donald, 80 So. 643, 119 Miss. 256, also relied on by counsel for the appellee, for the reason that in both of those cases the deeds held to be invalid against the claim of simple creditors were not supported by a valuable consideration, but were deeds of gift, while the deed here in question was made in good faith for value.

In the McCrory case, the court held that the conveyance there under consideration became effective under the statute as of — “the date of its recordation, the cred itors were not subsequent creditors, but were existing creditors, and the deed being a voluntary conveyance without consideration could be set aside by the creditors.”

The decision in the Carberry case was to the same effect; the language of the court being: “Under the plain terms of this statute, this deed did not take effect as to his creditors until filed for record; and, when it was filed for record, the debt which is the foundation of appellee’s judgment had been contracted and was owing by the husband. The deed was voluntary. Under the law, a debtor cannot give away his property, even to his wife, and thereby defeat his creditors.”

The exact question here presented was decided adversely to the appellee’s contention in Green v. Weems, 38 So. 551, 85 Miss. 566. The facts in that case were that on December 15, 1901, Benjamin A. Weems executed and delivered to his wife, “for full value and in perfect good faith,” a deed to certain land. This deed was acknowledged on April 29, 1902, but was not filed for record until July 28, 1902. In May, 1902, Weems purchased merchandise from Green & Sons, and afterwards executed a note to him for the balance due therefor. Green & Sons sued Weems on this note, and obtained a judgment thereon in January, 1904. They then sued in equity for the cancellation of the deed from Weems to his wife and for the subjection of the property therein conveyed to the judgment they had obtained against Weems. The court below declined to cancel the deed, and this court, in affirming’ the decree, among other things said:

“We think that Code 1892, section 2294, ought to receive, by analogy, similar construction to that heretofore placed on section 2457, as regards creditors. In other words, when the ‘third party’ referred to in section 2294 is a creditor, that section means that he must be a lien creditor. There would be manifest inharmony of construction if we held, as counsel for appellant eon- tends we should hold, that a mere unsecured creditor is meant by section 2294, where -the conveyance or transfer is between husband and wife, while we hold that .section 2457 applies only to lien creditors. It is notice by filing for record, of deeds which is dealt with by both statutes, and no more in the one case than in the other did the legislature intend to give to a mere general creditor at large the right to avoid a previous conveyance executed for full value and in perfect good faith, as the testimony in-this record shows was the case here.”

The construction there put upon the statute was after-wards adopted by the legislature for the statute was reenacted in 1906 (Code 1906i, section 2522; Hemingway’s Code, section 2056), without change, except the words “or any lien of lands” was added thereto, and “the rule is that, where a statute has been construed by the highest court of a state, and afterwards re-enacted in substantially the same terms, the legislature by such re-enactment adopts, along with the statute, such construction. ’ ’ White v. Illinois Cent. R. Co., 55 So. 593, 99 Miss. 651; Henry v. Henderson, 60 So. 33, 103 Miss. 48. See, also, Davis v. Holberg, 59 Miss. 362; Shotwell v. Covington, 12 So. 260, 69 Miss. 735; Wetherbee v. Roots, 16 So. 902, 72 Miss. 355; Hoy v. Hoy, 48 So. 903, 93 Miss. 732, 17 Ann. Cas. 1137, 25 L. R. A. (N. S.) 182, 136 Am St. Rep. 548.

Overruled.