Rollings v. Rosenbaum

Decision Date29 May 1933
Docket Number30638
Citation166 Miss. 499,148 So. 384
CourtMississippi Supreme Court
PartiesROLLINGS v. ROSENBAUM et al

Division A

1. FRAUDULENT CONVEYANCES.

Delivery or possession of trucks was implied where deed from tenant conveying them to his wife showed good consideration, and language of deed was that of deed to land.

2. LANDLORD AND TENANT.

Claimant of trucks which were attached was required to show that they were bought in good faith for valuable consideration before levy was made (Code 1930, sections 2192, 2200).

3. LANDLORD AND TENANT.

Landlord had no lien upon trucks which he attached and which were sold by tenant to his wife prior to attachment (Code 1930 sections 1944, 2192, 2200).

4. FRAUDULENT CONVEYANCES.

Recital of valid consideration in deed of conveyance between husband and wife is prima facie true, and burden of showing falsity of such recital rests upon party attacking deed (Code 1930 section 1944).

5. FRAUDULENT CONVEYANCES.

Tenant's wife who showed deed of sale to her reciting valid consideration for tenant's trucks attached by landlord made prima facie case, and landlord had burden to establish fraud or other defense (Code 1930, sections 1944, 2192, 2200).

6. LANDLORD AND TENANT.

In action by tenant's wife to replevy trucks which were attached by landlord as tenant's, whether wife was entitled to replevy held for jury (Code 1930, sections 1944, 2192, 2200).

7. LANDLORD AND TENANT.

Tenant's wife who sought to replevy trucks wrongfully attached by landlord was entitled to reasonable attorney's fees, if prevailing (Code 1930, sections 2192, 2216).

8. LANDLORD AND TENANT.

Stranger claimant is entitled to reasonable damages for wrongful attachment under same circumstances as tenant is entitled under statute (Code 1930, sections 2192, 2216, 2220, 2222).

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Suit by Mrs. Christine Rollings to replevy chattels attached by W. L. Rosenbaum and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. C. Sams and J. O. Sams, of Meridian, for appellant.

Property of third persons on leased premises is not liable for rent.

Sections 2219 and 2220, Mississippi Code of 1930; Brunswich Co. v. Murphy, 89 Miss. 264, 42 So. 288; Shuler v. Grunewald Co., 113 Miss. 763; White v. Miazza-Woods Construction Co., 122 Miss. 213; Gibson v. Loch & Smith, 58 Miss. 298.

Property on leased premises may be sold to third persons and not be liable for rent, even though such person knew that rent was due and that the landlord looked to the property for the rent.

White v. Miazza-Woods Construction Co., 122 Miss. 213; Richardson v. McLaurin, 69 Miss. 70, 12 So. 264; Patty v. Boyle, 59 Miss. 496.

Landlord has no lien for rent and, before attachment for rent, no greater right than ordinary creditors.

White v. Miazza-Woods Construction Co., 122 Miss. 213; Richardson v. McLaurin, 69 Miss. 70, 12 So. 264; Shuler v. Grunewald, 113 Miss. 763, 74 So. 659; Henry v. Davis, 60 Miss. 212; Williams v. Noble, 55 F.2d 658 (C. C. A. S.); Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447; Patty v. Boyle, 59 Miss. 496.

The burden of proof is on the claimant to prove ownership, but once he has proved ownership the burden shifts to the landlord to prove property subject to lien.

Section 2223, Mississippi Code of 1930; Dunn v. Hart, 120 Miss. 132, 81 So. 795.

Fraud must be clearly alleged and proved.

Cooperative Oil Co. v. Greenwood Agency Co. et al., 148 Miss. 536, 114 So. 397; Dunlap v. Fox (Miss.), 2 So. 169; Parkhurst v. McGraw, 24 Miss. 134; Carter v. Eastman-Gardner Co., 95 Miss. 651, 48 So. 615; Hall v. Thompson, 1 S. & M. 443.

Landlord cannot subject for rent due property of another though used in business as trader, if true ownership is shown by recorded instrument.

Fitzgerald v. American Mfg. Co., 114 Miss. 580, 75 So. 440; Tuft v. Stone, 70 Miss. 54, 11 So. 792.

Word delivery is not necessary, and words, bargain, sell, convey and warrant are sufficient to pass all title.

1 Words & Phrases (1st series), page 706; Britton v. Freeman, 17 N. J. Law 191-231; 1 Words & Phrases (1st series), page 707; Holland v. Rogers, 33 Ark. 251-255; 1 Words & Phrases (1 series), page 707; Richardson v. Levy, 3 S.W. 444-8, 67 Texas 359; 2 Words & Phrases (2d series), page 405; Bevan v. Muir, 101 P. 485-88, 53 Wash. 54, 32 L.R.A. (N.S.) 588; 2 Words & Phrases (1st series), page 1571; Kelly v. Flemming, 18 S.E. 81, 113 N.C. 133; 2 Words & Phrases (1st series), page 1571; Lippman v. State, 16 So. 130, 104 Ala. 61; Leavy Craft, v. Hedden, 4 N. J. Equity (3 H. W. Green) 512-552, 2 Words & Phrases (1st series), page 1573; Lambert v. Smith, 9 Ore. 185-193; Chapman v. Charter, 34 S.E. 768-72, 46 W.Va. 769; Jackson v. Green, 112 Ind. 341-42, 14 N.E. 89, 2 Words & Phrases (2d series), page 1036; State v. Kelliher, 88 P. 867-68, 49 Ore. 77; Field v. Collumbert, 4 Sawyer 527, 9 F. Case 12.

Party replevying property is entitled to attorneys I fees by way of damages for wrongful suing out of attachment.

Sections 2216, and 2222, Mississippi Code of 1930; Whittington v. Moore, 147 Miss. 169.

Stone & Stone, of Meridian, for appellees.

Up to about the 14th day of May, 1932, all the property in question covered by all three instruments remained in the possession of Sam Rollings, the husband, and was being used by him in his business as a trader. Even though the consideration set out was about one thousand dollars for the property claimed to have been sold, and fifty dollars per month for the property leased, all of it remained in the hands of the grantor and lessor for a period of four months; and there is not one word of proof in the record that any of it was ever actually delivered to the appellant in this case.

A husband cannot give away his property to his wife to the hurt of his creditors and there is not, in this record, one word of proof as to what was passed.

In cases where it appears that facts explanatory of a doubtful situation are peculiarly in the possession of one of the parties, the law requires that party to speak or else the presumption arises that the explanation, if made, would be against the interests of the party in possession of them.

Fulson-Morris Coal Company v. Mitchell, 370 Okla. 575; Kirby v. Talmadge, 160 U.S. 379; Anderson v. Cumberland Telephone Company, 86 Miss. 341; Hill v. U.S. 234 F. 39; 22 C. J. 115.

The burden rested upon appellant to prove what consideration, if any, was made.

12 R. C. L. 669, par. 174.

It is generally held that when a conveyance is assailed by the creditors of her husband on the ground of fraud, the burden of proof is on the wife to establish the existence, amount, and the validity of the consideration, and when the decisions speak about the burden of proving good faith as being on the wife, they mean generally that she must show that she purchased the property out of her own separate estate.

Hanner-Gaylord Company v. Miller & Bennett, 147 F. 295; McCrory v. Donald, 119 Miss. 256.

Argued orally by W. C. Sams, for appellant, and J. H. Stone, Jr., for appellee.

OPINION

McGowen, J.

W. L. Rosenbaum filed his attachment for rent, by affidavit in a justice of the peace court, in conformity with section 2192, Code 1930, against Sam Rollings. The affidavit alleged rent to be due by Sam Rollings to the Rosenbaum Realty Company, a partnership, and that said rent was due on a lease of a certain building in Meridian, Mississippi. The distress warrant was issued by a justice of the peace, placed in the hands of a constable, and said constable went to the place of business of Sam Rollings, but found no property or goods therein. Later, he discovered certain articles of personal property stored about eight blocks from this place of business, which articles of personal property were pointed out by Sam Rollings. Thereupon, the constable levied an attachment writ upon two trucks. Mrs. Christine Rollings filed an affidavit claiming to be the owner of said trucks, gave bond therefor, and the trucks were released to her. In due time, she appeared in the circuit court and filed her declaration according to the statute, and issue was made up between Mrs. Christine Rollings and the Rosenbaum Realty Company as landlord defendant in the court below. In addition to these facts, it was shown, on behalf of Mrs. Christine Rollings, by the chancery clerk, that these trucks had been conveyed to her by deed reciting a consideration of seven hundred fifty dollars cash or its equivalent in hand paid by her to Sam Rollings, her husband, on January 15, 1932, duly acknowledged on May 14, and filed for record the same day. The writ was levied on the trucks by the officer on May 17, 1932.

It was shown that there had been other transactions between the husband and wife, dated, acknowledged, and filed, as was this deed. It was further shown that Mrs. Christine Rollings personally arranged with the owner of the storage room to store certain goods therein, and that Sam Rollings had nothing to do with the storage thereof. The business which Sam Rollings conducted was that of the sale of gasoline, oil, and tires, and he also had a repair shop in connection therewith.

Just a short time before the attachment writ was issued and sought to be levied, Sam Rollings' business was open, and it was shown that he delivered gasoline and oil with a truck, but it did not appear whether the particular trucks here in controversy were used in connection with that business or not.

On these facts, neither Mrs. Christine Rollings nor her husband were introduced as witnesses, and, on the conclusion of the plaintiff's testimony, the court below sustained a motion to...

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5 cases
  • Mills v. Damson Oil Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 14, 1982
    ...Burks v. Moody, 141 Miss. 370, 106 So. 528, suggestion of error overruled, 141 Miss. 370, 107 So. 279 (1926); Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384 (1933). Appellees failed to discharge their burden of producing any evidence tending to show the falsity of the recitals of conside......
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    • Mississippi Supreme Court
    • December 9, 1974
    .... .' import verity, as we have said so many times before. See Ratcliff v. State, 201 Miss. 259, 29 So.2d 321 (1947); Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384 (1933); Burks v. Moody, 141 Miss. 370, 106 So. 528, suggestion of error overruled 141 Miss. 370, 107 So. 279 (1926); Virden ......
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    • United States
    • Mississippi Supreme Court
    • October 22, 1934
    ... ... employ counsel, being successful, was entitled to an ... attorney's fee ... Rollins ... v. Rosenbaum, 148 So. 384, 166 Miss. 499 ... The ... court has so many times ruled on the question that if the ... instructions taken as a whole, are ... ...
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    • United States
    • Mississippi Supreme Court
    • April 25, 1996
    ...prima facie evidence that the grantee therein was a bona fide purchaser for a valuable consideration without notice. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384 (1933); Burks v. Moody, 141 Miss. 370, 106 So. 528, suggestion of error overruled, 141 Miss. 370, 107 So. 279 (1926); Atkins......
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