Green v. Weems

85 Miss. 566 | Miss. | 1904

Whitfield, C. J.,

delivered the opinion of the court.

We think that Code 1892, § 2294, ought to receive, by analogy, similar construction to that heretofore placed on sec. 2457, as regards creditors. In other words, when the “third party” referred to in sec. 2294 is a creditor, that section means that he must be a lien creditor. There would be manifest inharmony of construction if we held, as counsel for appellant contends we should hold, that a mere unsecured creditor is meant by sec. 2294, where the conveyance or transfer is between hus-' band and wife, whilst we hold that sec. 2457 applies only to lien creditors. It is notice by filing for record of deeds which is dealt with by both statutes, and no more in the one case than in the other did the legislature intend to give to a mere general creditor at large the right to avoid a previous conveyance executed for full value and in perfect good faith, as the testimony in this record shows was the case here. It is true that until the .deed or transfer from the husband to the wife, or e converso, has been filed for record, such conveyance or transfer is invalid as to any “third person,” whether creditor, purchaser, or otherwise ; but the moment it is filed for record it is to be dealt with in all respects precisely as a trust deed or mortgage filed for record under sec. 2457 is dealt with. The two cases referred to by counsel for appellant (Gregory v. Dodds, 60 Miss., 549, and Black v. Robinson, 62 Miss., 68) are not in point. In the latter the creditor was a lien creditor holding a trust deed,' and in the other there never was any written transfer even of the furniture. These cases furnish no light in the solution of the question with which we have dealt.

Incidentally it may be noted that this is the first civil appeal from the new county of Lamar, and it may be noted as a pleasant feature that the appeal furnishes the occasion for the first construction of the statute in the particular respect involved.

Affirmed.