Dogan v. Cooley

• Decision Date: 23 January 1939
• Docket Number: 33465
• Citation: 185 So. 783,184 Miss. 106
• Court: Mississippi Supreme Court
• Parties: DOGAN, SHERIFF, et al. v. COOLEY

185 So. 783

184 Miss. 106

DOGAN, SHERIFF, et al. v. COOLEY

No. 33465

Supreme Court of Mississippi

January 23, 1939

APPEAL from the chancery court of Grenada county HON. L. A. SMITH SR., Chancellor.

Suit by Mrs. Mary L. Cooley against D. W. Dogan, Sheriff, and another to enjoin the sale of land by the Sheriff. From a decree for plaintiff, defendants appeal. Reversed and remanded for a new trial.

Reversed and remanded.

W. M Mitchell, of Grenada, for appellants.

We submit that the evidence produced by the appellee, aside from that of the appellee, and her husband, both of whom are interested parties, indicates very strongly, to say the least, that Mrs. Cooley was simply a surety for her husband who was in fact the real purchaser of the land.

The attempted conveyance of this land to Mrs. Cooley by J. M. Cooley, after the enrollment of this judgment against him, was of course void as to appellant, R. F. Carpenter.

Carberry v. Lann-Carter Hwd. Co., 126 Miss. 293; McCrory v. Donald, 119 Miss. 256.

Transactions between husband and wife are viewed with suspicion as against creditors and the presumption, where one purchases property in name of the other, is of a gift, rather than a trust.

Krippendorf v. Wolfe, 70 Miss. 81.

A transfer or conveyance of lands between husband and wife shall not be valid as against third persons, unless the conveyance be in writing, acknowledged and filed for record.

Section 1944, Code of 1930.

All of the testimony in the case shows undisputably that, if there was in fact any trust intended here, it was an express trust, by the mutual agreement by both of the parties thereto, and that the payment of her money for the purchase of the land was based upon this express agreement and does not, and could not therefore, arise by implication of law.

Horne v. Higgins, 76 Miss. 813; M. E. Church, South v. Odom, 100 Miss. 64; Wax v. Pope, 175 Miss. 784; Benbrook v. Young, 96 Miss. 536.

S. C. Mims, Jr., and W. B. Nicols, both of Grenada, for appellee.

Under resulting trusts it is provided that where a purchase has been made and the legal estate is conveyed to A, but the purchase price is paid by B, that a trust results in favor of B.

Pomeroy's Equity Jurisprudence.

The ancient and equitable principle that the beneficial estate follows consideration and a attaches to the parties from whom the consideration comes is a settled doctrine in England and in a great majority of the American states.

Cannon v. Holburg Mercantile Co., 66 So. 400, 108 Miss. 102; Bank v. Posey, 130 Miss. 530, 92 So. 840.

Where property is purchased and the legal title is taken in the name of one person, while the purchase price is paid by another person, a trust at once results in favor of the party who pays the price, and the holder of the legal title becomes a trustee for him.

3 Pomeroy's Equity Jurisprudence, sec. 1037; Walker v. Grungard, 13 S. & M. 764; Gee v. Gee, 32 Miss. 192; Gibson v. Foot, 40 Miss. 788; Brooks v. Shelton, 54 Miss. 353; Moore v. Moore, 74 Miss. 59; Candler v. Cromwell, 57 So. 554, 101 Miss. 161.

A judgment creditor succeeds to only such rights in the judgment debtor's property as the judgment debtor actually has. The judgment creditor merely succeeds the judgment debtor; that is, takes his place and subjects the actual interest of the judgment debt to his demand. The judgment creditor is barred by all the equities which bar the judgment debtor, and can assert no demand that the judgment debtor is precluded from asserting.

Harris v. Hazlehurst, Oil Mill, 30 So. 273, 78 Miss. 603; Foute v. Fairman, 48 Miss. 536; Miss. Valley Co. v. Chicago R. R. Co., 58 Miss. 846.

It is the contention of the appellee that the equitable title of the appellee was not affected by the recordation of the judgment against the holder of the legal title to the land as the court found in the case of Dedeaux v. Cuevas et al., 107 Miss. 7, 64 So. 844: "Code 1906, sec. 2788 (2146, 1930 Code) declaring that every conveyance shall take effect as to all subsequent purchasers for a valuable consideration without notice only from the time recorded, applies only to legal, and not to equitable, titles."

Ethridge, J., Griffith, J., McGehee, J., concurring. Smith, C. J., dissenting. McGowen, J., concur.

OPINION

Ethridge, J.

The appellee, Mrs. Mary L. Cooley, filed a bill in the Chancery Court of Grenada County against D. W. Dogan, Sheriff, and R. F. Carpenter, who was plaintiff in an execution, alleging that on or about January, 1936, the complainant, appellee here, purchased from the Grenada Bank, through one of its trustees, the south half of northeast quarter of section 15 in township 21 of range 2, east, in Grenada county; and that at the time of the purchase she had the title thereto made in the name of her husband, J. Matt Cooley, for the reason that she was not able to pay in cash the entire purchase price; and the bank required notes and a mortgage on the land for the balance due thereon. At the time of this transaction the appellee was in the mercantile business, being associated with her sister. She was advised that having a debt of record would impair her credit. She made the cash payment of $ 500 on the purchase price of the land, and all the subsequent payments; and financed all farming operations on the place for the year 1936. The appellee avers that her husband did not invest a dollar in the farm, that his connection therewith was as her husband; and that it was the intention of her husband and herself to have the title placed in appellee as soon as this could be done without injury to the business of appellee; and that in compliance with such agreement her husband, J. Matt Cooley, executed a deed to her to the said lands, which was made an exhibit to the bill.

It was then averred that at the July, 1936, term of the Circuit Court of Grenada County R. F. Carpenter secured a judgment against J. Matt Cooley, and caused an execution to be issued thereon, and placed in the hands of the sheriff, D. W. Dogan; and the complainant charged that pursuant thereto, and by virtue thereof, he has levied upon, and is threatening to sell the lands in question thereunder, and will do so unless restrained by the court.

The complainant further alleged that her husband, J. Matt Cooley, has never had an interest or equity in the lands, that he acted as the complainant's trustee; and that the vesting of the title in the said J. Matt Cooley did not mislead the said Carpenter, for the reason that the liability upon which the judgment was predicated had been incurred by the said J. Matt Cooley many years prior to the purchase of the land; and, further, that not only would the sale of the land under execution cause substantial and irreparable injury to her credit, but that a deed under the sale would be a cloud on her title, and that she would have no adequate remedy at law to protect her rights, etc.

One of the exhibits to the declaration was a deed from J. Matt Cooley to the complainant, dated October 27th, 1937, and acknowledged on the same day, to the lands described in the bill, in consideration of one dollar. The judgment under which the land was about to be sold was obtained in July, 1936, and enrolled in August, 1936, and was a lien of record on the date on which J. Matt Cooley conveyed the lands in question to the complainant, his wife.

On January 22, 1937, after filing the original bill as above stated, an amendment to the bill of complaint was filed, in which it was alleged that the complainant and J. Matt Cooley are husband and wife, living together as such, are householders, have a family, and are resident citizens of Mississippi; and that this status has existed for the past ten years or more; that the land described in the original bill constitutes their homestead, and is occupied as such, comprising an acreage of less than 160 acres, the value of which, after deducting the indebtedness thereon secured by a mortgage, does not exceed $ 3, 000; and, further, that the lands constituted such homestead on November 1, 1936, which status has continued to the present date. Complainant avers that the above facts, in addition to other grounds alleged in her bill of complaint as reason for restraining the sale of such lands by the sheriff, entitle her to the relief prayed for in her original bill.

The answer to the bill denied that the lands constitute. a homestead, but admitted the relationship of marriage between Mary L. Cooley and J. Matt Cooley; denied that the complainant owned the lands here involved, alleging that the property was then, and remains, the property of J. Matt Cooley, subject to the sale for his debts; and denied that complainant ever obtained title to the property by reason of having advanced the purchase money therefor, if she did in fact do so; denied that his connection with said property has been that of complainant's manager or agent, but averred that he managed and operated the farm as owner thereof; and denied that it was the purpose and intention of the complainant and her husband that the title to the land should be conveyed to the latter as trustee for complainant. They allege that if such were the intention of the parties, it would be an illegal act, a fraud upon the rights of creditors of J. Matt Cooley, a violation of the statutes against conveyances between husband and wife, and those prohibiting secret trusts between them; and that the effect was to convey the title therein, legal and equitable, to the husband, J. Matt Cooley, rendering the lands subject to his debts.

On the hearing the complainant, Mary L. Cooley, testified in support of the allegations of the bill, over objection, that the reason the title was in her husband's name was that she and her sister were in...