Virden v. Dwyer

• Decision Date: 11 March 1901
• Citation: 78 Miss. 763,30 So. 45
• Court: Mississippi Supreme Court
• Parties: ELLEN E. VIRDEN ET AL. v. ANDREW J. DWYER

30 So. 45

78 Miss. 763

ELLEN E. VIRDEN ET AL. v. ANDREW J. DWYER

Supreme Court of Mississippi

March 11, 1901

FROM the chancery court, first district, of Hinds county. HON HENRY C. CONN, Chancellor.

Dwyer appellee, was complainant in the court below; Mrs. Virden and her husband, appellants, were defendants there. From a decree of the chancery court in complainant's favor the defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Judgment reversed and bill dismissed.

Harper & Potter, for appellants.

The conveyance recites a valuable consideration, and such recital is prima facie evidence of the fact and stands conclusive until it be shown otherwise by competent and satisfactory evidence. Leach v. Shelby, 58 Miss. 686; Baum v Lynn, 72 Miss. 932.

The rules of law applicable to transactions between husband and wife seem settled in this state. It has been held that "such dealings, though to be carefully scrutinized on account of the temptation to give an unfair advantage to the wife over other creditors, must be treated by the same principles as a conveyance by a debtor to a stranger, when brought in question as fraudulent against creditors." Kaufman v. Whitney, 50 Miss. 108.

"It is not enough to charge this fraudulent scheme in vigorous phrase, nor enough to produce evidence to support the charge which raises mere suspicion, but it rested upon complainant to clearly show the fraud charged by satisfactory evidence. Until that had been done to the extent, at least, of making a prima facie case, the duty was not upon the respondents to show that their purchases were made in good faith." Shoe Co. v. Davie, 75 Miss. 451.

Where the proofs do not show fraud, the court cannot affirm its existence. Hiller v. Ellis, 72 Miss. 700; Shoe Co. v. Davie, 75 Miss. 451; Mizell v. Herbert, 12 Smed. & M., 547.

Mc Willie & Thompson, for appellee.

The deed was fraudulent in fact, and therefore void. After a full hearing and a most careful consideration the learned chancellor so decided, and we submit that his decree is amply sustained by the evidence. This decree, being based on controverted facts, is analogous to the verdict of a jury. Davis v. Richardson 45 Miss. 499; Apple v. Ganong, 47 Miss. 189; Harrington v. Allen, 48 Miss. 492; Wilson v. Beauchamp, 50 Miss. 24.

The deed in question being between husband and wife, it was incumbent on the parties, when the consideration was assailed, to make a satisfactory showing of the fairness and good faith of the transaction. They must shed light and not darkness upon it. They should show to the court satisfactorily all of the items of the alleged indebtedness from one spouse to the other, and the good faith of the entire transaction. When the effect is to cut out other creditors, such deeds are viewed with jealousy, and the courts require a clear and satisfactory showing of the fairness and sufficiency of the consideration. In other words, the burden of proof is on the party claiming under such a deed. Horton v. Davey, 53 Wis. 413. The recital in the deed is insufficient. Sillyman v. King, 36 Iowa 213; Waite on Fraud. Conv., sec. 220.

Argued orally by W. H. Potter for appellant, and R. H. Thompson for appellee.

OPINION

CALHOON, J.

In the case of Virden v. Murphy, 78 Miss. 515, 28 So. 851, decided November 12, 1900, we reversed the court below on a record involving the identical facts with that before us now, but solely because there the contract on which the proceedings were based, was for advances to be paid from the profits of a gambling concern of the class called in ordinary parlance bucket-shops. The present case is not in that category, and must be determined by ascertaining whether the facts show a fraudulent conveyance. Both cases are suits in attachment in chancery against Ellen E. Virden and Geo. S. Virden, her husband, nonresidents, to subject property of the husband to the satisfaction of his debts to the complainants below, and both proceed on the predicate that a conveyance by him to her of the property in question was without consideration, fraudulent, and void as to his creditors. In the Murphy case elaborate interrogatories were, by the bill, propounded to Virden and his wife, the defendants, which were by them separately answered. In the instant case they were not propounded, and Ellen E. Virden alone answered the bill, a decree pro confesso being entered against the co-defendant, George S. Virden, her husband; but it was agreed that their answers to the interrogatories in the Murphy case "may be offered by either party hereto in evidence on the trial of this cause, subject to objections for competency and relevancy." The answers of the husband were objected to in the case at bar, and they were manifestly incompetent. Husband and wife are not competent witnesses against each other in this case. Leach v. Shelby, 58 Miss. 681; Saffold v. Horne, 72 Miss. 470, 18 So. 433 et seq., and authorities there cited.

We are compelled to differ from the learned chancellor in his conclusion on the facts. The bill charges that the conveyance of the property by George S. Virden to his wife, the appellant, was voluntary, without consideration, fraudulent and void as to his creditors. The burden was on the creditor the appellee, to prove this. He has not done so, but must rely upon the only testimony he offers, and that is of the appellant herself, and she refutes it and shows that the conveyance was based on a valuable consideration, grounded on the surrender and cancellation of a debt from her husband to her, evidenced...