Gregory v. Dodds

60 Miss. 549

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

Sect. 1178 of the Code of 1880 makes void “ as to any third person ’ ’ all toansfers of property between husband and wife, though accompanied by delivery of possession, unless ■evidenced by some written instrument duly filed for record.

The circuit judge instructed the jury in this case that a parol transfer from a husband to his wife would, nevertheless, be valid as to subsequent creditors, and that none save those who were creditors of the grantor at or before the date of the transfer were injured by it or could attack it. Such is certainly not the language of the statute, which does not use the word “ creditor,” but declares such transfers void as to “third persons;” neither •do we think that the construction put upon it by the judge below accords with the spirit of, or accomplishes the result designed to be reached in the enactment. The evil sought to be guarded against was the frequent perpetration of frauds by pretended transfers of property between husbands and wives, and the very great difficulty of detecting them. Such was the magnitude of the evil that the lawgiver sought at once to extirpate it by declaring void, as to third persons, every such conveyance, whether made bona fide or mala fide, unless the same is in writing and spread at large upon the public records of the country. The whole object of the enactment would be defeated if the party could escape its effects by parol proof of a verbal transfer antedating the creation of the debt to which it was attempted to subject the property transferred, since the same difficulty in establishing the true date of the transfer must exist as there always was and always will be in disproving the fact that any such transfer ever took place. The only way to obviate this difficulty and make the law effective is to enforce it exactly as written, by holding that wherever the rights of any third person intervenes, whether he be creditor or purchaser, and whether his rights accrued before or after the alleged transfer,- no proof of a transfer made in any other method than in that pointed out by the statute shall be received. Transfers ' made otherwise are good between the parties and volunteers claiming under under them, but void as to all others.

For the errors in the instructions the judgment is reversed and a new trial awarded.