Kennington v. Hemingway

• Citation: 101 Miss. 259,57 So. 809
• Decision Date: 12 February 1912
• Docket Number: 15,391
• Court: United States State Supreme Court of Mississippi
• Parties: R. E. KENNINGTON v. T. W. HEMINGWAY ET AL

57 So. 809

101 Miss. 259

R. E. KENNINGTON v. T. W. HEMINGWAY ET AL

No. 15,391

Supreme Court of Mississippi

February 12, 1912

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Suit by R. E. Kennington against T. W. Hemingway et al. From a decree dismissing the bill, complainants appeal.

In 1882 T. W. Hemingway married Mrs. E. L. Catchings, and they lived together as husband and wife until 1907, when they were divorced. In the year 1903, while they were living together and while Hemingway was solvent and in a prosperous condition, he gave his wife a diamond ring worth about seven hundred dollars, which she kept after they were divorced with his full knowledge and consent, and which she wore as a personal ornament. In the year 1908, Mrs. Catchings, who had then been divorced from Hemingway, pledged the ring with a bank in Jackson as security for a loan. The money was loaned Mrs. Catchings without knowledge of the fact that the ring had been given her by her husband, and without knowledge that Hemingway had ever owned it, or that he was indebted to the appellant. In November, 1909, the appellant, Kennington obtained a judgment against Hemingway, and enrolled the same on December 11, 1909. Afterwards, on April 12, 1910, Hemingway was adjudicated a bankrupt, and a trustee appointed to take charge of his estate.

Afterwards the appellant filed a bill in chancery against Hemingway, Mrs. Catchings, the bank, and the trustee of the bankrupt estate of said Hemingway, as parties defendant. Later, Mrs. Catchings having died, the suit was revived against the administrator of her estate. The prayer of the bill was that the court adjudicate the rights of the various parties to the ring held by the bank, and that the judgment against Hemingway in favor of Kennington be decreed to be a lien upon said ring, and that said ring be sold to satisfy the lien. Appellant contends that the gift by Hemingway to his wife of this ring is in violation of section 2294 of the Code of 1892, requiring gifts between husband and wife to be in writing and acknowledged and recorded, in order to be valid against claims of third persons.

Decree affirmed.

Mayes & Longstreet, for appellant.

We do not challenge the general doctrine that the literal import of a statute is not to be followed if the result would be absurd, and if any more reasonable view can be taken. But while that is the general rule, it is also true that where the language of an act is clear and unambiguous, it must be held to mean what it plainly expressed, and no room is left for construction. Where the words are free from ambiguity and the purpose plain, the courts have no power to create exceptions by construction. Eastman v. State, 109 Ind. 278, 18 Am. Dig. (Dec. Ed.), tit. Statutes, sec. 19.0

The wisdom or want of wisdom displayed in the act is not a question for the courts. Merchants Bank v. Cook, 4 Pick. (Mass.) 405; Gorham v. Steinan, 7 Ohio N. P. 478; Rossmiller v. State, 114 Wis. 169.

By doubts and difficulties arising in the construction of statutes, is not meant those which are engendered by the predilection of the court, or its notions about what the law ought to be, but such doubts and difficulties as are inherent in the problem to be solved." St. Louis, etc., R. R. Co. v. Delk, 158 F. 931. This court has frequently anounced similar rules. Smith v. Halfacre, 6 How. 58; Daily v. Swope, 47 Miss. 367; Hazlehurst v. Mayes, 96 Miss. 656.

Secondly. There is no such absurdity resulting from this statute as calls for any construction by the court, limiting or restricting the exact application of the statute exact language, exactly as written. This, we submit, becomes clear, when the history of the statute itself is considered. Give the law its proper setting, and it seems clear that there is no absurdity whatever. As remarked in the Delk case above, the law may not accord with the court's idea of what the law ought to be; but there is no legal absurdity in it. 2 Black's Comm. 433, 435; Geo. Miss. Dig., p. 391; 2 Black's Comm., p. 436, 21 Cyc. 1172; Geo. Miss. Dig., pp. 394-397, 3 Atk. 394; Noy's Max., ch. 49; 2 Bl. Comm., p. 436; Towns v. Pratt, 33 N.H. 345, 19 N.J.Eq. 316.John B. Ricketts, for appellee.

The facts in this case are not in dispute; they are fully set out in the briefs of other counsel, but, as administrator of the estate of Mrs. Catchings, I desire to state that the conveyance from Hemingway to his wife was perfectly valid.

(1) Because a diamond ring, worn as the personal apparel, being wearing apparel, does not fall within the condemnation of the statute. In other words, it was neither goods nor chattels. The phrase "goods and chattels" means nothing more than goods, because the word "chattels" is controlled by the word "goods." See Am. and Eng. Ency. Law, vol. 5, p. 1022.

To illustrate this proposition, section 4784 of the Code requires all persons doing business as "trader or otherwise" to have a sign disclosing the name of the principal, etc. It was held in the case of Yale v. Taylor, 63 Miss. 598, that the term "trader or otherwise" meant simply a trader, and that is the exact rule of construction of the statute in question. Certainly, it was not the intention of the legislature to prohibit conveyance of such property as would be subject to execution. The diamond ring in question was wearing apparel, and was not subject to execution. Cyc., vol. 17, p. 943.

It has been repeatedly held that a watch worn by a debtor cannot be taken for execution. Mack v. Parks, 69 Am. Dec. 267.

Watkins & Watkins, for appellee.

Section 2522 of the present Code, being section 2294 of the Code of 1892, is in the following language:

"What necessary to validity of conveyance (Laws 1900, ch. 90).--A transfer or conveyance of goods and chattels, or lands, or any lease of 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."

It is contended by the appellant in this case that the transfer on the part of T. W. Hemingway to his wife, made in 1903, which was even before the creation of appellant's debt, and six years before the same was placed in judgment, is invalid even as against an innocent purchaser from the wife of T. W. Hemingway, who, in good faith, and for value, acquired the ring without notice, actual or constructive, of the invalidating circumstances.

We respectfully submit to the court that the section is not susceptible of the construction sought to be placed upon it by appellant's counsel. The object of the section was not that of invalidating every conveyance between husband and wife, but only invalidating conveyances as against the interest of certain third persons and, of course, it would follow as a natural sequence that the rights of the third persons referred to should come into existence before the rights of any innocent purchaser from either the husband or wife should accrue.

This court has made the meaning of this statute very plain in two decisions. In the first place, in the case of Green v. Weems, 85 Miss. 566, it limited the term "third person" by saying that third person must mean a lien creditor. It does not mean any third person, or every third person, even if that third person should ever happen to be a debtor. The decision is clear and explicit. Therefore, we find that this court has expressly limited the "third person" to a creditor, and not only a creditor, but a lien creditor.

In the case of Groce v. Ins. Co., 94 Miss. 201, the court further held that a third person did not refer to an insurance company, carrying a fire insurance policy on the improvements situated upon the real estate. Therefore, we have by a settled line of decisions the law established that a conveyance between husband and wife is not ipso facto invalid. In the first place, it is perfectly good between the husband and wife; in the next place, it is perfectly good as against everybody, except lien creditors; and we say it, therefore, follows as a natural sequence that the lien must accrue and be obtained before the rights of innocent purchasers are involved.

Take for instance, the case of Gregory v. Doods, 60 Miss 549; in that case, there was a successful effort to reach the proceeds of household furniture which was given by the husband to the wife without a formal deed of conveyance and by the wife sold to the garnishee, George S. Dodds. That case proceeded upon the theory that Mr. Dodds, being an innocent purchaser for value, acquired a good title to the...