McAllister v. Honea

• Citation: 14 So. 264,71 Miss. 256
• Court: United States State Supreme Court of Mississippi
• Decision Date: 08 January 1894
• Parties: S. F. MCALLISTER v. R. A. HONEA

14 So. 264

71 Miss. 256

S. F. MCALLISTER v. R. A. HONEA

Supreme Court of Mississippi

January 8, 1894

FROM the chancery court of Monroe county, HON. BAXTER McFARLAND Chancellor.

R. A Honea, claiming to be the real owner of certain land, filed this bill against Mrs. S. F. McAllister to cancel, as a cloud on his title, her claim thereto. Complainant and defendant claim title front a common source--Honea claiming under an execution sale of the land as the property of Mrs. M. E Burkitt, and Mrs. McAllister claiming under a conveyance from Mrs. Burkitt. On January 28, 1892, Mrs. Burkitt, being at the time in the undisputed possession and ownership of the land executed a trust-deed thereon to secure a large indebtedness in favor of Mrs. McAllister, her mother, to nature January 1 1893. At that time she was largely indebted to sundry creditors, who were pressing for payment of their debts. She was indebted, among others, to appellee, R. A. Honea, who brought suit, and, in March, 1892, recovered judgment, which he caused to be promptly enrolled. In June, 1892, Mrs. Burkitt conveyed the lands to her mother, Mrs. McAllister, reciting, as the consideration, that it was in payment of the debt secured by the trust-deed previously executed, and further reciting that Mrs. McAllister assumed the payment of a certain debt due by Mrs. Burkitt. Subsequently, during the same year, other creditors of Mrs. Burkitt obtained judgment, and executions were issued on them, and levied on the land in controversy, and it was sold and bought at execution sale by appellee.

Complainant seeks to cancel the title of Mrs. McAllister, on the ground that the trust-deed in her favor, executed by Mrs. Burkitt, and the subsequent conveyance in payment of the debt, were fraudulent as to creditors. The circumstances mainly relied on by complainant to show the fraudulent character of these conveyances are that the transaction was one between an only daughter and a widowed mother, who lived together; that the existence of any indebtedness to the mother was unknown to any one, and especially to the other creditors of Mrs. Burkitt, who were, for the most part, local merchants; that Mrs. Burkitt had sought indulgence from her creditors by assuring them that she only owed the amounts due such merchants; that she had sought to borrow money to pay these debts; that afterwards, when her creditors were pressing and threatening suit, she executed the trust-deed to her mother to secure an alleged debt of $ 3,000 to mature January 1, 1893; that in June following, after appellee. Honea, had recovered judgment, but before maturity of the debt secured by the trust-deed, she conveyed the land to her mother. It was also shown that Mrs. McAllister had never rendered in for assessment and taxation the debt claimed to be due by Mrs. Burkitt.

On the other hand, defendant introduced evidence tending to show that the indebtedness was genuine, and this evidence was sufficient to control the court below in finding that the trust-deed and subsequent conveyance were executed in good faith.

As to part of the land in controversy, complainant sought to cancel the title because of an alleged patent ambiguity in its description. The facts touching this branch of the controversy are sufficiently stated in the opinion.

The decree...