Burks v. Moody

• Decision Date: 04 January 1926
• Docket Number: 25272
• Citation: 106 So. 528,141 Miss. 370
• Court: Mississippi Supreme Court
• Parties: BURKS et al. v. MOODY. [*]

106 So. 528

141 Miss. 370

BURKS et al. v. MOODY. ^[*]

No. 25272

Supreme Court of Mississippi

January 4, 1926

Division A

On Suggestion Of Error, March 1, 1926.

1. FRAUDULENT CONVEYANCES. Conveyance between husband and wife held valid or invalid for same reasons as between other persons.

A conveyance between husband and wife, which complies with section 2522, Code of 1906 (Hemingway's Code section 2056), is valid or not for the same reasons that would render it valid or not were it between other persons.

2 EVIDENCE. Fraudulent conveyances. Recital of valid consideration in deed held prima facie true; burden of showing falsity of recital of valid consideration is on party attacking deed for fraud on creditors.

The recital of a valid consideration therefor in a deed is prima facie true, and in a suit to cancel such a deed, as having been made to hinder, delay, and defraud creditors, the burden of showing the falsity of such recital is on the party attacking the deed.

3. APPEAL AND ERROR. On reversal of decree canceling deed judgment against sureties on bond, conditioned so as to supersede only that portion of decree, will not be entered.

Where a decree rendering a personal judgment, canceling a deed to land, and subjecting it to the payment of the judgment, is appealed to the supreme court, the bond therefor being conditioned so as to supersede only that portion of the decree canceling the deed and subjecting the land to the payment of the judgment, the supreme court, on affirming the personal judgment but reversing the decree canceling the deed, will not enter a judgment against the sureties on the appeal bond for the amount of the personal judgment appealed from.

APPEAL from chancery court of Pearl River county HON. T. P. DALE, Chancellor.

Suit by Ida Moody against J. A. Burks, Jr., and others, for cancellation of deeds. From judgment below, defendants appeal. Reversed in part, and bill dismissed in part.

Following is the appeal bond:

"State of Mississippi, Pearl River county:

"Know all men by these presents, that we, Joe Burks, Sr., and Jas A. Burks, and Mrs. E. K. Burks, principals, and J. A. Megehee and W. T. Stockstill, sureties, free-holders in the state, are held and firmly bound unto Ida Moody, in the penal sum of two thousand dollars, for which payment, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators, forever.

''The condition for the foregoing obligation is such that, whereas, in the chancery court of Pearl River county, a judgment was rendered against Joseph Burks, Sr., Joseph Burks, Jr., and Mrs. E. J. Burks, and in favor of Ida Moody, at the February, 1925 term of said court, and the said Joseph Burks, Sr., and Joseph A. Burks, Jr., and Mrs. E. J. Burks, feeling aggrieved by said judgment, have prayed and obtained an appeal to the supreme court, said appeal to operate as a supersedeas, and prevent the collection of the sum of money decreed by the said decree, to be due and owing the said Ida Moody by the sale of said property as directed in said decree. This bond is given under section 54 of Code of 1906, and section 30 of Hemingway's Code.

"Now, if the said Joseph Burks, Sr., and Joseph A. Burks, Jr., and Mrs. E. J. Burks shall prosecute said appeal with effect and shall satisfy such final judgment as may be entered by the supreme court, and all costs, if the same be affirmed, then this obligation to be void; otherwise to remain in full force and effect.

"Given under our hands this 19th day of May, 1925.

"JOE BURKS, SR.

"MRS. E. J. BURKS.

"JAS. A. BURKS.

"W. T. STOCKSTILL.

"J. A. MEGEHEE.

"The foregoing bond approved this 22d day of May, 1925. H. K. Rouse, Chancery Clerk."

Reversed. Overruled.

Hathorn & Williams and J. E. Stockstill, for appellants.

There was no evidence offered to substantiate the charge in the bill of complaint that the deed from Burks senior, to his wife was voluntary and without consideration. The burden of proof rested upon the complainant to show by the evidence, not only the conveyance from husband to wife at a time when the husband was indebted to complainant, but to prove also that the conveyance was voluntary and without consideration, or that the consideration mentioned in the deed was not paid, or that if paid, the said consideration was not adequate or fair. Since these averments were all denied by the answer and were not substantiated by proof, it necessarily follows that the chancellor was ill error in holding that the deed was fraudulent and in ordering the same to be set aside and the land sold to satisfy complainant's judgment in the circuit court.

In view of Virden v. Dyer, 78 Miss. 763, 30 So. 45, it was certainly not sufficient merely to show this conveyance made, November 18, 1922; the filing of the declaration in the circuit court on October 6, 1921; the entry of a judgment in said suit in the circuit court on November 8, 1923; and execution issued on said judgment December 17, 1923; and a return of nulla bona thereon on March 29, 1924; and yet this is the only proof offered by complainant in support of the averment that the deed was made to defraud her.

The fraud charged in the bill of complaint in the case at bar is not a constructive fraud but is an alleged fraud in fact. A sale will not be set aside as fraudulent in fact merely because it is doubtful and suspicious; but the proof must be satisfactory and inferences will not suffice. White v. Trotter, 14 S. & M. 30, 53 Am. Dec. 112; Tuteur v. Chase, 6 So. 241; McInnis v. Wiscasset Mills, 78 Miss. 52, 28 So. 725.

The chancellor should have entered a decree denying the relief prayed for and dismissing the bill.

Mayson & Kelly, for appellee.

I. The only decree rendered against Burks, junior and Burks, senior, was a personal decree on the judgment in suit. The decree in the court below must, therefore, be affirmed as to Burks, junior, and Burks, senior, and the sureties on their supersedeas bond. Holmes v. Ferguson-McKinney Dry Goods Co., 86 Miss. 782, 39 So. 70; Little v. Camack et al., 109 Miss. 753, 69 So. 544; Sec. 1022, Code of 1906 (sec. 742, Hemingway's Code, and citations.)

II. The conveyance to Mrs. E. J. Burks was properly vacated. This deed of conveyance was executed two years after the cause of action arose and one year after its institution, but a year prior to the rendition of the judgment. The execution of the deed, being between husband and wife, comes within the condemnation of section 2522, Code of 1906 section 2056, Hemingway's Code). This conveyance must have been made before the cause of action arose, and if in error as to this, it certainly must have been executed and filed for record before the action was instituted to give it validity against appellee's claim. Carberry et al. v. Lann-Carter Hdw. Co., 126 Miss. 293, 88 So. 769; McCrory v. Donald, 119 Miss. 256, 80 So. 643; Hugh McInnis v. Wiscassit Mills, 78 Miss. 52, 28 So. 725; Ladd v. Jordan, 66 Am. St. Rep. at 289.

The concensus of judicial opinion is that one having a claim against another for a tort upon which a judgment is afterwards rendered is a creditor within the meaning of the statute from the time of the commission of the tort. Cunn v. Hardy et al., 31 So. (Ala.), 443; Burnwell Coal Co. v. Setzer, 83 So. 139.

III. The burden of proof was on appellant, Mrs. E. J. Burks, to show the bona fide of the transaction. Appellee's bill charged that the deed was made to the appellant, Mrs. Burks, with intent to hinder, delay and defraud the appellee. Answer under oath was specially waived. Appellee proved the existence of her debt, the issuance of an execution and its return unsatisfied. That was sufficient to make out appellee's case. Waddle v. Great Southern Phosphate Co., 63 So. 462.

The burden of proof is on the appellant to show that she was an innocent purchaser and for value. Richards v. Vaccaro, 67 Miss. 516, 7 So. 506. The burden of proving all affirmative allegations in an answer to a bill in chancery devolves upon the respondent and the answer, though duly sworn to, is not the proof required. Austin Clothing Co. v. Posey, 105 Miss. 720, 63 So. 224, 64 So. 5; Virden v. Dyer, 78 Miss. 763, 30 So. 45, is not in point.

Hathorn & Williams, in reply, for appellants.

The appeal bond was not given under section 50, Code of 1906 (section 26, Hemingway's Code); but was given under section 54, Code of 1906 (section 30, Hemingway's Code). The bond provides that "said appeal to operate as a supersedeas, and prevent the collection of the sum of money decreed by said decree to be due and owing the said Ida Moody by the sale of said property as directed in said decree. This bond is given under section 54, Code of 1906 (section 30, Hemingway's Code)." It is manifest from an examination of this bond, in connection with the section of the Code under which the bond itself states that it is made, that it was intended to supersede only that part of the decree which called for a sale of the land to satisfy the circuit court judgment.

Under section 1022, Code of 1906 (section 742, Hemingway's Code), the bond in this case must be construed and applied as it was intended, which was simply to prevent a sale of the property contained in the conveyance which was vacated, and was not a bond under section 50, Code of 1906 (section 26 Hemingway's Code), to prevent execution on the circuit court judgment and, as appellee contends, to prevent execution on that part of the decree which fixes the amount of the circuit court judgment. The part of the decree fixing the amount of the circuit court judgment was given, as we have heretofore stated, merely as a guide to the commissioner appointed by the decree for making the sale and not a personal decree,...