Austin Clothing Co. v. Posey

• Decision Date: 20 October 1913
• Docket Number: 16,084
• Court: Mississippi Supreme Court
• Parties: AUSTIN CLOTHING CO. v. J. L. POSEY et al

63 So. 224

105 Miss. 720

AUSTIN CLOTHING CO. v. J. L. POSEY et al

No. 16,084

Supreme Court of Mississippi

October 20, 1913

APPEAL from the chancery court of Neshoba county, HON. J. F. MCCOOL Chancellor.

Suit in chancery by the Austin Clothing Company against J. L. Posey. From a decree for defendants, complainants appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

Huddleston & Austin, for appellant.

This cause in the court below was tried and is here, on the facts stated in the answer and the following two well-known and universal rules, viz.: "All matters of fact averred in the bill and not denied by the answer otherwise than by general traverse, may be taken at the hearing as admitted." Code 1906, Sec. 584, and authorities there cited, especially Burnette v. Chaffe, 69 Miss. 279; Hopper v. Overstreet, 79 Miss. 241; Applewhite v. Foxworth, 79 Miss. 773. "The pleadings of a party is conclusive evidence against him." Abbott's Civil Jury Trials (3rd Ed.), 378.

There is no necessity for proof aliunde of admitted facts. Upon the facts set up in the answer, we rely. We reaffirm, that under the admitted facts (the facts set up in the answer and those averred in the bill and not denied by the answer), appellants are entitled to a decree, granting the relief prayed, most assuredly as against the wife and without possibility of doubt, is this so as to appellant, Austin Clothing Company whose judgment, as the record shows, was obtained and enrolled, full two months before the delivery or filing of the deed from the debtor husband to her, such deed purporting to be on the consideration of one dollar. As to the other creditors of the husband, it would violate every rule of recognized equity, to decree such deed bona fide under the state of facts set up in the answer. We submit appellants are entitled to a decree here.

G. E Wilson and Wells, May & Sanders, for appellee.

We ground our contention upon the fact that the cause was set down and heard upon the bill of complaint when the bill of complaint was sworn to by the complainant's solicitor whose affidavit was upon information and belief, and the answer of the defendants properly sworn to. Upon this state of the record, with no evidence before the court it was proper for the court to dismiss the bill.

The sworn answer entitled the defendants to the judgment of the court below.

Learned counsel argues, with great ingenuity, that the deed from J L. Posey to his wife, Mrs. M. F. Posey, reciting the consideration of one dollar, and the defendant's setting up in the answer divers affirmative matters touching the real, further, and additional considerations of the conveyance, thereby incurred the burden of proving such affirmative matters in the answer notwithstanding the answer was sworn to and no proof being taken by the defendant touching these matters, it was error for the court to hold that such conveyance was made for a sufficient, valuable consideration. This contention is more ingenuous than sound. It is undoubtedly true that when the conveyance is assailed as fraudulent because of inadequacy of consideration, the defendant may set up affirmatively the truth touching the consideration, and of course would have to prove such affirmative matters, and the defendants did prove such matters by swearing to the answer. Section 591 of the Code, is as follows: "A replication to an answer shall not be required, hut the cause shall be at issue when the answer is filed"

This section construed in connection with section 586, makes it clear that when an answer is filed, setting up affirmative matters, and is sworn to, no replication is necessary, but in the absence of any testimony, the bill being unsworn, such affirmative matters appearing in the answer, are just as much established as are negative matters therein contained. The statute makes no distinction between the character of the things which are established by the sworn answer, but the rule applies as to the answer in its entirety.

What force and effect is to be given an unrecorded conveyance from husband to wife as against intervening creditors. It is urged that the conveyance from J. L. Posey to his wife, Mrs. M. F. Posey, of the town lot, was void because not recorded before the rendition and enrollment of the Austin Clothing Company's judgment. This conveyance was not void but was good between the parties. Grace v. Insurance Co., 94 Miss. 207. And a creditor who has the right to complain is one filing a lien ahead of the conveyance from husband to wife. Green v. Weems, 85 Miss. 566.

Undoubtedly the conveyance was effectual as to all creditors filing liens subsequent to the filing for record of the deed from J. L. Posey to his wife, and that applied to all the complainants except the Austin Clothing Company. That all the other complainants must fail is virtually conceded by appellants' counsel, but it is strenuously urged that the Austin Clothing Company should be accorded relief.

We submit that the Austin Clothing Company is not entitled to any relief for two reasons: In the first place, the amount and extent of their claim was emphatically denied by the answer and they failed to meet this situation by offering any proof whatsoever as to the amount and extent of their claim against J. L. Posey. It is true they recited a certain judgment and the amount of it. The answer declared that the amount claimed is excessive, that a part of it has been paid, and that the complainants altogether have demanded at least twice as much as they are entitled to. The complainants were content to permit this denial of the bill to go unanswered by testimony contravening it.

There is another reason why the Austin Clothing Company is not entitled to go against the town lot for the collection of its unanswered, unascertained demand. It is averred by the answer that the lot in Philadelphia was bought with the money of Mrs. Posey, and she placed in possession, but the title was taken in the name of her husband.

Mrs. M. F. Posey was in possession as owner by virtue of the fact that she advanced the money for the purchase of this property and her possession was notice of her equitable title. While it is true that under section 2522, possession is not notice of an unrecorded conveyance from husband to wife, such possession is notice of any other character of title by which she may be holding possession; that other title, that is the equitable title arising by reason of the fact that she furnished the money for the purchase of the property for her, was proclaimed by her possession. This title arose not by virtue of the conveyance from her husband, but in reality existed despite the fact that her husband had been guilty of a constructive fraud as to her, when he took title in his own name instead of having the conveyance made to her at the outset. His conveyance to her was but a recognition by him of her rights and when we come to deal with her rights arising by reason of the facts, which have never been denied, she is to be dealt with and accorded the same rights as others, no more, no less.

That possession is notice of equitable title, is too well settled to admit of argument, or to require citation of authorities. See long list of cases Bobbs-Merrill Digest, vol. 4, page 127, subject Vendor and Purchaser, subtitle Possession.

The rule stated and supported by the cases is as follows "Possession of land by one under claim of title, is...