84 So. 3d 786
Miss. Ct. App.2011Background
- Hilda Roby Kelly sought to execute a $6,000 judgment against Jimmy Roby by targeting real property Jimmy and Theresa Roby owned, via a lien on parcels later conveyed to SRT Investments.
- Jimmy and Theresa executed four warranty deeds in 1999 transferring five Monroe County parcels to SRT Investments, with survivorship language; deeds were not recorded until after Jimmy's death.
- Hilda enrolled her judgment in May 1999; Jimmy died August 4, 2002; Mary recorded the four deeds August 20, 2002.
- Chancellor held the 1999 deeds void as to Hilda under Mississippi Code 89-5-3, but found Theresa acquired full title by survivorship, so the property would not be part of Jimmy's probate estate.
- Estate petitions for relief against Theresa and Mary were resolved in prior orders; the court concluded Hilda’s lien should be satisfied from Jimmy’s personal property, not from the realty.
- On appeal, the Mississippi Court of Appeals affirmed, holding the deeds were void as to Hilda and the property remained with Theresa by survivorship; the dissent urged a different reading of 89-5-3 and potential liens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1999 deeds to SRT were void as to Hilda | Kelly argues deeds were void against creditors under 89-5-3 and potentially fraudulent under 15-3-3. | Roby entities contend deeds are void only to creditors and that survivorship passed title to Theresa. | Deeds void as to Hilda; survivorship passed title to Theresa. |
| Whether survivorship defeats creditor lien after decedent's death | Lien should attach to property despite survivorship and follow the land post-death. | Survivorship extinguishes debtor’s interest and authority to execute against the property after death. | Survivorship defeats post-mortem execution against the jointly held property. |
| Whether fraud or lack of consideration invalidates the conveyances | Conveyances were fraudulent to hinder, delay, or defraud creditors under 15-3-3. | Issue waived; no court ruling or authority to support fraud claim; no impact on outcome. | Issue waived; not considered on appeal. |
| Whether Hilda’s enrollment timing affected lien attachment | Lien attached when enrolled, potentially before death. | Enrollment after death cannot attach to survivorship property. | Lien could not attach to property due to survivorship and timing. |
Key Cases Cited
- Ayers v. Petro, 417 So.2d 912 (Miss. 1982) (explains joint tenancy and survivorship; described as to tenancy by entirety)
- Oliver v. Oliver, 812 So.2d 1128 (Miss. Ct. App. 2002) (survivorship transfers upon death)
- Wallace v. United Miss. Bank, 726 So.2d 578 (Miss. 1998) (surviving joint tenant takes property free of deceased’s creditor claims)
- Morreale v. Morreale, 646 So.2d 1264 (Miss. 1994) (fraudulent conveyances and creditor remedies)
- Gilbert Bros. v. Gilbert, 258 Ill.App.3d 395, 630 N.E.2d 189 (Ill.App. 1994) (equitable effects of fraud on joint tenancy)
- Covington v. Murray, 416 S.W.2d 761 (Tenn. 1967) (fraudulent conveyances and creditor rights)
- First Investors Corp. v. Rayner, 738 So.2d 228 (Miss. 1999) (estoppel and creditor rights in property transfers)
- Campbell v. Drozdowicz, 10 N.W.2d 158 (Wis. 1943) (fraudulent transfers and severance concepts (cited for comparative law))
- Oliver v. Oliver, 812 So.2d 1128 (Miss. Ct. App. 2002) (survivorship and property disposition on death)