Green v. Weems

• Decision Date: 05 June 1905
• Citation: 38 So. 551,85 Miss. 566
• Court: Mississippi Supreme Court
• Parties: JOHN B. GREEN ET AL. v. BENJAMIN A. WEEMS ET UX

38 So. 551

85 Miss. 566

JOHN B. GREEN ET AL. v. BENJAMIN A. WEEMS ET UX

Supreme Court of Mississippi

June 5, 1905

FROM the chancery court of Lamar county, HON. THADDEUS A. WOOD Chancellor.

Green and others, the appellants, trading under the name of Green &amp Sons, were complainants in the court below; Weems and his wife, appellees, were defendants there. From a decree in defendants' favor the complainants appealed to the supreme court.

Benjamin A. Weems was a merchant, and in May, 1902, purchased merchandise from appellants, and afterwards gave them his note for a balance due on the goods. On December 15, 1901 Benjamin A. Weems made and delivered a deed to his wife Lillian B. Weems, conveying to her the land involved in this suit. This deed was acknowledged April 29, 1902, but was not filed for record until July 28, 1902. Appellants brought suit in the circuit court on their note and obtained a judgment against Benjamin A. Weems in January, 1904. They then filed the bill in this case against Benjamin A. and Lillian B Weems, seeking to set aside the deed made by Benjamin to Lillian as a fraud upon his creditors, and to subject the property to the payment of their judgment.

The statute is as follows: "2294. What necessary to validity of conveyance.--A transfer or conveyance of goods and chattels or lands between husband and wife shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be, and possession of the property shall not be equivalent to filing the writing for record; but to affect third persons, the writing must be filed for record."

Affirmed.

C. G. Mayson, and McWillie & Thompson, for appellants.

The appellants were creditors of the defendant, Benjamin A. Weems, before the deed from himself to his wife was filed for record, and the deed is therefore void as to appelants, because of the provision of Code 1892, § 2294.

A lien or secured creditor does not need the protection of the statute; and if no other creditor is protected by it, then it is a dead letter so far as concerns creditors.

The provision of the statute is that a conveyance of lands between husband and wife shall not be valid as against a third person unless the conveyance be in writing and acknowledged and filed for record. Most unquestionably the conveyance here involved was not valid against Green & Sons until recorded, and the possession of the property, by the very terms of the statute, was immaterial. The question of Weems' financial condition is not at all material. A husband may be immensely wealthy, and yet the conveyance of a most trifling piece of property by him to his wife is void under the statute as against unsecured creditors. Black v. Robinson, 62 Miss. 68; Gregory v. Dodds, 60 Miss. 549.

Such cases as Graham v. Morgan, 83 Miss. 601, are quite side the mark. No question of whether the conveyance was made in good or in bad faith is involved; no question of whether the husband was indebted to the wife and undertook to make the conveyance in payment of a bona fide debt is before us.

In Gregory v. Dodds, 60 Miss. 549, this statute, then Code 1880, § 1178, was first construed, and it was held that whether the conveyances were made bona fide or mala fide they were void as to all third persons, and that they were void as to creditors, whether subsequent creditors or antecedent ones, and whether the third person's rights accrued before or after the pretended transfer.

The section of the code itself is peculiar, and is unquestionably broad. The words "creditor" and "purchaser" are not used; neither of them is used; but the parties as against whom the conveyances are void are "any third person." Every man is presumed to contract debts, to some extent at least, upon the faith of his ownership of property, and when the husband, Benjamin A. Weems, bought complainants' goods, presumptively the appellants extended credit on the faith of the ownership of the property involved in this suit.

At the time Green & Sons became creditors the pretended deed was void as to them, and that, too, even if it be true that it was signed by the husband and delivered to the wife on the 15th of December, 1901. Can it be that the conveyance was void as to appellants before, and that it became valid on the 28th of July, 1902, simply from the fact that it was lodged for record on that day? Nothing was done by the husband to give it validity in July, 1902. Can it be that a wife may receive a conveyance from her husband which is utterly void, that she can hold it until her husband contracts debts on the faith of his apparent ownership of the property, and, after the contraction of debts by her husband, she can put the void deed of record and thereby defeat her husband's creditors? Most manifestly this would be inequitable and unjust. It would be to reestablish the old condition of affairs which the section of the code was intended to defeat. Secret and private conveyance between husband and wife, whose relations to each other are so close as to baffle all investigation, was what the legislature intended to condemn and prevent. To permit the wife to accept a void deed and to hold it as a void deed until the exigencies of her husband's affairs are such as to need her protection, and then to give the conveyance validity by simply lodging the void deed for record, is practically to obliterate the statute and to render easily possible the very evil which the legislature intended to prevent.

Section 2294 of the code ought to be so construed as to render absolutely invalid any unrecorded deed between the husband and the wife as to all creditors who became such before the deed is recorded, if in fact it does not require a...