Odom v. Luehr, 39851

• Decision Date: 06 February 1956
• Docket Number: No. 39851,39851
• Citation: 226 Miss. 661,85 So.2d 218
• Parties: D. F. (Frank) ODOM et ux. v. Elmer LUEHR et al.
• Court: Mississippi Supreme Court

Page 218

85 So.2d 218

226 Miss. 661

D. F. (Frank) ODOM et ux. v. Elmer LUEHR et al.

No. 39851.

Supreme Court of Mississippi.

Feb. 6, 1956.

Robert E. Covington, Jr., Quitman, Witherspoon & Bourdeaux, Meridian, for appellants.

Lavelle Smith, Russell Wright, Meridian, A. J. Reese, Quitman, for appellees.

ARRINGTON, Justice.

The appellees in a former suit recovered judgment in the amount of $14,106.52 against the appellant, D. F. (Frank) Odom, for the unlawful cutting of timber on the appellee's land. Odom v. Luehr, 213 Miss. 782, 57 So.2d 867. In the instant case, the appellees filed suit in the Chancery Court of Clarke County to set aside and cancel deed of conveyance of March 29, 1949, from D. F. Odom to his wife, Mrs. Vermel Craft Odom, on the ground that the conveyance was to hinder, delay, and defraud appellees of their just and lawful action against appellant Odom. From a decree setting aside and cancelling the deed as a fraudulent conveyance as to the appellees, the Odoms appeal.

The deed recited a consideration of $10 and conveyed approximately 148 acres of land of the value of $9,000, which property was occupied by appellants as a homestead.

The record in Odom v. Luehr, supra, was introduced in the present case, and shows that the appellant wrongfully cut, or had cut, the timber on appellees' land during the period from November 1, 1948, to April 1, 1949. Suit for the wrongful cutting was filed by appellees on May 31, 1949. Decree was rendered for appellees on February 14, 1951, and affirmed by this Court on April 7, 1952. While this appeal was pending, the Odoms sold to the Knightons the property involved for $9,000, receiving $3,000 in cash and $6,000 in notes, secured by deed of trust on the land. The appellees asked that the $6,000 indebtedness be subjected to the judgment against Odom.

The appellants first contend that the court erred in setting aside and cancelling the deed as a fraudulent conveyance as to the appellees. The rule as to fraudulent conveyances is well stated in the case of Robinson v. McShane, 163 Miss. 626, 140 So. 725, 726, as follows: 'The applicable law is well settled in this state, and a succinct statement of it is that, if a debtor, and especially if he be largely indebted, convey a substantial portion of his property for a nominal consideration or by way of gift, this is presumptively fraudulent as to existing creditors, and the burden will rest upon the defendant to rebut the presumption by showing that the debtor retained property easily accessible to execution and amply sufficient in the ordinary course of events to satisfy his then existing legal liabilities. Golden v. Goode, 76 Miss. 400, 24 So. 905; Ames v. Dorroh, 76 Miss. 187, 197, 23 So. 768, 71 Am.St.Rep. 522.'

In the cited case of Golden v. Goode, supra, this Court said [76 Miss. 400, 24 So. 906]: 'The rule as to voluntary conveyances may be thus stated: A grantee in a voluntary conveyance must show, as against a creditor of the grantor, who is such at the date of the conveyance, that such grantor left out of such voluntary conveyance property easily accessible to execution, amply sufficient, in the ordinary course of events, to satisfy his then-existing legal liabilities. That is his precise burden.'

We are of the opinion that the conclusion of the chancellor, both as to the law and the facts, in setting aside and cancelling the deed as a fraudulent conveyance is correct.

The appellant also contends that the court erred in allowing an exemption of $3,000 instead of $5,000. We think this contention of the appellant is well founded. Section 317, Mississippi Code of 1942, provides that homesteads shall be exempt from execution and attachment up to the value of $3,000. This section was amended by Chapter 360, Laws of 1950, which...