De Bardeleben Coal Corp. v. Parker
| Decision Date | 21 November 1932 |
| Docket Number | 30256 |
| Citation | 144 So. 474,164 Miss. 728 |
| Court | Mississippi Supreme Court |
| Parties | DE BARDELEBEN COAL CORPORATION v. PARKER et al |
Suggestion Of Error Overruled January 2, 1933.
APPEAL from chancery court of Union county, HON. JAMES A. FINLEY Chancellor.
Suit by De Bardeleben Coal Corporation against W. E. Parker and others. From decree dismissing complainant's bill complainant appeals. Affirmed in part and in part reversed and remanded.
On suggestion of error. Suggestion of error overruled. For former opinion, see 144 So. 474.
Affirmed in part and in part reversed and remanded. Suggestion of error overruled.
Chas. Lee Crum, of New Albany, for appellant.
The undisputed facts render the sale fraudulent as to appellant.
Sec. 407, Code of 1930; Robinson v. McShane, 140 So. 725; Golden v. Goode, 76 Miss. 400, 24 So. 905; Ames v. Garroh, 76 Miss. 187, 23 So. 768; Bourn v. Bourn, 140 So. 518.
The deed is both void and fraudulent as to appellant under the statute.
Sections 1765, 1778, Code of 1930; McGrath v. Sinclair, 55 Miss. 89; Columbia Mut. Life v. Jones, 133 So. 149; Johnson v. Hunt, 79 Miss. 631, 31 So. 205; Kipperdorf v. Wolfe, 12 So. 26; Lewis v. White, 13 So. 349.
The unrecorded deed made by the debtor to his mother is entirely "void" as to appellant.
Sections 2135, 2146, 2147 and 2148, Code of 1930; Nugent v. Piebastch, 61 Miss. 402; Sack v. Gilmer, 149 Miss. 296, 115 So. 339; Lewis v. White, 69 Miss. 352, 13 So. 349; Loughridge v. Rowland, 52 Miss. 546; Zokoski v. McIntyre, 93 Miss. 806, 47 So. 435.
This being a creditor's bill (sec. 407, Code of 1930), on which an attachment was issued and levied under section 173, Code of 1930, et seq., the appellant acquired a lien on the lands levied on from the date of the levy.
Slatterly v. Lumber Co., 125 Miss. 229, 87 So. 888.
The courts hold that a resulting or constructive trust must be established as a defense by clear, full convincing and satisfactory evidence and beyond a reasonable doubt, that the proof must take the matter out of the realm of conjecture, must be unequivocal, clear and undoubted, and if the evidence rests in parole, it must be received with great caution, especially after the death of the alleged trustee, as in this case.
39 Cyc. 166; Logan v. Johnson, 72 Miss. 185, 16 So. 231; Stevens v. Fitzpatrick, 218 Mo. 708.
A resulting trust is sometimes called a constructive trust, but such trust, by whatever name called, does not arise by agreement of the parties, but fraud, either active or constructive, is an essential element of constructive or resulting trusts.
It is well settled that where money is advanced by way of a loan to be used by the borrower in the purchase of property in his own name no resulting trust arises in favor of the lender.
In order to create a resulting or constructive trust it, is absolutely indispensable that the payment should be actually made by the beneficiary, or that an absolute obligation should be incurred by him, as a part of the original transaction, at or before the time of the conveyance.
Pomeroy Equity Jurisprudence (3 Ed.), 1992.
It must be clearly proved that the trust funds were invested in the land. It will not be sufficient to show that the trustee was in possession of the funds, and while in possession of the funds he purchased the land; for in such case no presumption arises that the lands were purchased with such funds. If the trust money was mingled with other monies of the trustee so as to be indistinguishable, and the trustee has made investments generally with the money in his possession, the cestui que trust cannot claim a lien on the specific property, or funds constituting the investment.
6 Thompson on Real Property, sec. 4934; Ferris v. Van Wechten, 73 N.Y. 113.
Do sections 2146, 2147 and 2148, Code of 1930, or either of them, apply to the sale of exempt homesteads? For it is apparent that if either of these sections apply to recording a deed conveying exempt homesteads, the suggestion of error should be sustained. If neither of these sections with reference to filing deeds for record apply to deeds conveying homesteads that are exempt under the law, then this suggestion of error should be overruled.
If a lien exists at all on this twenty-four-acre tract by virtue of the levy of the attachment writ, it exists from the date of the levy.
Secs. 174 and 175, Code of 1930; Slattery v. Renoudet, 125 Miss. 229, 87 So. 888.
A conveyance of land shall not be good against . . . any creditor, unless it be acknowledged by the party who executed it . . . and lodged with the clerk of the chancery court of the county in which the lands are situated to be recorded.
All conveyances of lands "shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they are acknowledged or proved and lodged with the clerk of the chancery court of the proper county to be recorded.
The word "creditor" embraces any creditor who has acquired a lien on the property conveyed before he has knowledge of the existence of the deed conveying the same.
Loughridge v. Rowland, 52 Miss. 546; Sack v. Gilmer, 115 So. 339.
When an exemptionist ceases to permanently reside on his homestead it becomes liable to his debts, or ceases to be exempt.
Stephens & Stephens, of New Albany, for appellee.
While the deed executed by W. E. Parker to Mary Parker on March 3, 1930, only recites a consideration of love and affection and ten dollars, it is averred in appellee's answer to the original bill and amended bills, that there were other consideration in that appellee had a large claim against the estate of her deceased husband, N. J. Parker, which was then being administered, for money that her said husband had invested in the land mentioned in the deed, and it was agreed between the adult heirs of the said N. J. Parker, including W. E. Parker, that they would convey their interest in said land to appellee in consideration of the fact that she would not attempt to collect her said claim against said estate, which we submit was valid consideration for the execution of the deed.
By the return of the officer executing the process in this cause this appellee was in possession of all the property at the time said process was executed. This was sufficient notice to appellant of appellee's claim to the land.
None of the assets of the estate of N. J. Parker, deceased, should be subjected to the payment of the debts of any of the heirs of this estate until the amount of money due the ward of appellee is fully paid.
N. J. Parker did not only invest the money of this appellee in the land involved in this suit, except the tract shown to be heavily mortgaged, but invested about three thousand seven hundred dollars belonging to the estate of her said ward, and thus her claim to said property is far superior to that of appellant and should be protected in this proceeding.
During the months of December, 1929, and January, 1930, W. E. Parker became indebted to appellant in the sum of four hundred forty-one dollars and eighty-six cents for coal purchased by Parker from appellant. At that time Parker was the owner of an undivided one-seventh interest in certain real estate described in the bill, and which interest had been inherited by Parker from his father, N. J. Parker, who died on November 15, 1929. W. E. Parker was also a distributee in like proportion in the personal estate of his deceased father but which personal estate is still in the course of administration.
On March 3, 1930, W. E. Parker conveyed to his mother, Mrs. Mary Parker, his entire interest in the said lands, the sole consideration for the conveyance being as follows: In the fall of 1922, Mrs. Mary. Parker loaned to her husband, N. J. Parker, the money with which to purchase the said lands, it being understood, so far as the record shows, that the property was to be purchased in the name of the husband and thereafter so held. The adult heirs at law of N. J. Parker, including W. E. Parker, were made acquainted with the fact that the land was purchased by money loaned by the mother, Mrs. Mary Parker, and the said heirs agreed with her that she need not probate or attempt to probate her claim for said money against the estate, and that in lieu thereof, the heirs would deed the lands to the mother, and it was in accordance with this agreement, and for this sole consideration, that the deed of March 3, 1930, by W. E. Parker to his mother was made.
The debt due by W. E. Parker to appellant not having been paid, and there being no remaining property out of which appellant could recover its debt, a creditor's bill was filed by appellant on February 10, 1931, the prayer of which was that the conveyance by W. E. Parker to his mother should be set aside as without valid consideration and therefore in fraud of creditors. The court on the final hearing dismissed the bill and denied any relief.
It is not claimed in the testimony or in the argument that any such facts existed as would raise a...
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