Cannon v. Holberg Mercantile Co., 66 So. 400

66 So. 400 | Miss. | 1914

. Smith, C. J.,

delivered the opinion of the court.

(After stating the facts as above). The contention of counsel for appellees is that Mrs. Kennedy executed and delivered her deed to Hathorn some days prior to the execution and delivery of Hathorn’s deed to Cannon; and that immediately upon the execution of the deed to Hathorn the judgment lien attached, and therefore Cannon and appellant, his vendee, acquired the land subject thereto.

Counsel for appellees are mistaken in saying that the deed from Mrs. Kennedy to Hathorn was executed and delivered some days prior to the execution and delivery of the deed from Hathorn to Cannon. The first of these deeds was signed and acknowledged some days prior to the execution and delivery of the second, but they were delivered simultaneously; and the title to property vests not upon the signing and ackonwledging, of a deed, hut upon its delivery. The actual delivery of the deed from Mrs. Kennedy was not to Hathorn, but to Cannon; both deeds — that is, Mrs. Kennedy’s- deed to Hathorn and Hathorn ’h deed to Cannon — being delivered to Cannon simultaneously. This mistake of fact on the part of counsel for appellees may, or may not, be material, but we prefer to decide the case upon the actual facts as presented by the record.

It will be observed from the statement of the case hereinbefore made Hathorn paid nothing on either the land or the house placed thereon, and that the deeds to and from Hathorn were simply used as a- convenient method of vesting the title to the land in Cannon, who was the real purchaser. Hathorn acted as a mere conduit, through which title reached the real party in interest. He therefore had no interest in the land to which a judgment lien could attach. 2 Freeman on Judgments (4th Ed.), sec. 373.

Moreover, the only interest, if any, which Hathorn could be said to have had in the land by reason of this transaction was that he held it momentarily in trust for Cannon; for, “where property is purchased and the legal title is taken in the name of .one person, while the purchase price is paid by another person, a trust at once results in favor of the party who pays the price, and the holder of the legal title becomes a trustee for him.” 3 .Pomeroy’s Equity Jurisprudence, see. 1037; Walker v. Brungard, 13 Smedes & M. 764; Gee v. Gee, 32 Miss. 192; Gibson v. Foot, 40 Miss. 788; Brooks v. Shelton, 54 Miss. 353; Moore v. Moore, 74 Miss. 59, 19 So. 953. Property so held in trust is not subject to sale under execution, and a judgment creditor attempting to do so cannot invoke the aid of section 2787 of the Code, as is attempted to be done in this case, for the reason that it has been expressly held, in Kelly v. Mills, 41 Miss. 267, Miss. Valley Co. v. Chicago, etc., R. R. Co., 58 Miss. 848, that the registry laws have no application to an estate of this character.

Reversed, and final decree here in accordance with the prayer of appellant’s bill.

Reversed.