Tennent-Stribling Shoe Company v. Davie

• Decision Date: 21 February 1898
• Citation: 75 Miss. 447,23 So. 188
• Court: Mississippi Supreme Court
• Parties: TENNENT-STRIBLING SHOE COMPANY ET AL. v. MARY J. DAVIE ET AL., AND MAMIE R. PRUIT v. TENNENT-STRIBLING SHOE COMPANY ET AL

23 So. 188

75 Miss. 447

TENNENT-STRIBLING SHOE COMPANY ET AL. v. MARY J. DAVIE ET AL., AND MAMIE R. PRUIT v. TENNENT-STRIBLING SHOE COMPANY ET AL

Supreme Court of Mississippi

February 21, 1898

December 1897

FROM the chancery court of Noxubee county HON. A.M. BYRD Chancellor.

The facts are stated in the opinion of the court.

Affirmed and the cause remanded.

J. E Rives, for appellants and cross appellees.

I assert the following propositions, and insist that each one of them is maintained by the evidence. A careful consideration of the proof will show that appellants and cross appellees were entitled to the entire relief prayed for by them. My propositions are: [1] The sale of the land and of the stock of goods were parts and parcels of a scheme to defraud the creditors of Mrs. Davie; [2] the sale of the land by Mrs. Davie was fraudulent as to her creditors, and the pretended consideration therefor was in whole or part fictitious; [3] the sale of the stock of goods was fraudulent as to the creditors of Mrs. Davie; [4] Mrs. Fant participated in the fraud of Mrs. Davie in the sale of the land, and Mrs. Pruit had knowledge of the fraud, or of sufficient facts to put her on inquiry, and she was not a bona fide purchaser; [5] Edwards knew of his vendor's fraud at the time of his purchase of the stock of goods, and participated in the fraud; certainly he was advised of facts which were sufficient to put him on inquiry, and he was not a bona fide purchaser; [6] the pretended sale of the stock of goods was executory, and was not completed at the time appellants and cross appellees acquired a lien on the property by filing their bill; [7] Edwards has never paid anything for the stock of goods; [8] the purchase money for the sale of the stock of goods, if any part of it was ever paid, was not paid, in whole or in part, until after appellants and cross appellees had acquired a lien on the goods by the filing of their bill. In support of these several propositions I invite the court's careful attention to the evidence, and to a consideration of the following authorities' Allen v. Smith, 72 Miss. 689; Doe v. Dignowitty, 4 Smed. & M., 74; Burrill on Assignment, sec. 311; Waite on Fraudulent Conveyances, secs. 13, 241, 242, 243, 271, 280, 281, 282, 3 69; Richards v. Vaccaro, 67 Miss. 519; Rice on Evidence, 112; Mclean v. Letchford, 60 Miss. 169; Hart v. Foundry, 72 Miss. 809; Benjamin on Sales, sec. 870; Berry v. Waterman, 71 Miss. 497; Smith v. Sparkman, 55 Miss. 649; Bowden v. Gray, 49 Miss. 547; Jordan v. Harris, 31 Miss. 258.

J. A. P. Campbell, for appellee, Mrs. Fant, and cross appellant, Mrs. Pruit.

It will not do to let the cry of "fraud, fraud!" however vociferous, take the place of proof; and there must be more than relationship between the parties, and proximity of time between the transactions, to maintain the charge of fraud. These may be circumstances of more or less value, but can never be sufficient to supply the want of evidence.

A. C. Bogle, on same side.

The complainants must recover, if at all, upon the issue presented by their bill. Colbert v. Henly, 64 Miss. 377. The theory of the bill is that there was a scheme devised by and between Mrs. Davie and the other defendants to conceal the property of Mrs. Davie, so as to place it beyond the reach of her creditors. In order to maintain their case, they assumed the burden of proof to establish two things--first, that Mrs. Davie contemplated fraud, and, second, that her co-defendants knew of her intentions and aided her in consummating her fraudulent purpose. Pope v. Andrews, Smed. & M. Chy., 135; Ladnier v. Ladnier, 64 Miss. 373. Until this burden was met, at least prima facie, defendants were not called upon to make defense, save as made in the answer. The defense of bona fide purchaser for value is affirmative only in case a prima facie case has been made against defendants. Fulton v. Woodman, 54 Miss. 172; Waite's Fraudulent Conveyances, 158. This prima facie case is not made by creating mere suspicions. It can be made only by substantive facts showing the fraud alleged. Tutuer v. Chase, 66 Miss. 476; Allen v. Smith, 72 Miss. 689; Mitchell v. McDavit, 70 Miss. 608.

OPINION

WOODS, C. J.

In the latter part of March, 1897, the appellee, M. J. Davie, was the owner of a small mercantile business in the town of Macon, which was under the sole control and management of one R. M. Pruit, a son of Mrs. Davie by a former marriage. She was also the owner of two tracts of hired, named and described in the pleadings, one of which, the larger, was under mortgage for the sum of $ 1, 650, and the other, the smaller, was also under mortgage for the sum of $ 700. On March 29, 1897, Mrs. Davie conveyed both tracts of land, by separate deeds, to Mrs. Manie R. Pruit, her daughter-in-law, the wife of said R. M. Pruit, for a recited consideration, in the one case, of $ 1, 350, cash in hand paid, and the assumption by the vendee of the mortgage debt of $ 1, 650, and for a recited consideration, in the other case, of $ 710, in hand paid, and the assumption by the vendee of the $ 700 mortgage debt thereon. On the same day, the purchaser of these lands, Mrs. Manic R. Pruit, executed a mortgage on all the lands acquired as just stated, in favor of Mrs. Annie E. Fant, to secure an indebtedness of $ 1, 650, evidenced by Mrs. Pruit's promissory note of that date. Three days later, on April 1, R. M. Pruit, the son of Mrs. Davie, and her mercantile manager, sold the stock of goods in Macon to Mrs. M. E. Edwards, and delivered possession at once, Mrs. Edwards paying $ 500 cash down, and agreeing to pay the balance of the purchase price when the amount should be certainly ascertained by an inventory to be immediately taken.

On the second day of April the appellants exhibited their bill in the chancery court of Noxubee county, charging that these several sales of the land, and that of the stock of goods, were all parts and parcel of a fraudulent scheme devised by R. M. Pruit to put Mrs. Davie's property beyond the reach of her creditors, and that all the parties to these several transactions acted with knowledge of this fraudulent purpose, and assisted in the attempt to thus carry it out. The bill prays cancellation of the conveyances of the lands, and an annulment of the sale of the stock of goods.

All the parties answered, denying fraud or participation in, or knowledge of, any fraud, and averring that sales and purchases were made in good faith and for the considerations recited. Much evidence was taken, and, on final hearing, the court below found that the allegations of the bill touching the fraudulent character of the mortgage executed by Mrs. Pruit in favor of Mrs. Annie E. Fant, were not sustained, and that Mrs. Fant acted in good faith and without notice of any fraud on the part of Mrs. Davie or R. M. Pruit. The court also found that the allegations of the bill in regard to the sale of the stock of goods to Mrs. Edwards, were not sustained by the evidence, and that Mrs. Edwards was a bona fide purchaser for value and without notice of any fraudulent purpose on the part of the seller. The court further found that the allegations of the bill as to the sale of the lands by Mrs. Davie to Mrs. Pruit, were sustained by the evidence as to the recited consideration of $ 710 in one of the conveyances from Mrs. Davie and Mrs. Pruit, the court being of opinion that this consideration of $ 710 was fictitious and simulated. The decree of the court accordingly dismissed the bill as to Mrs. Fant and Mrs. Edwards, taxing the complainants with two-thirds of the costs, and declared Mrs. Pruit's title to the hinds conveyed to her by Mrs. Davie null and void.

From the decree in favor of Mrs. Fant and Mrs. Edwards the complainants appeal; and from the decree vacating her title, Mrs. Pruit prosecutes a cross appeal.

The gravamen of complainants' bill...