91 So. 2d 831 | Miss. | 1957
On June 10, 1955, General Contract Corporation, ap-pellee, which, for brevity, we will call complainant, filed the bill in this cause against Bill Howell Motor Company, a corporation, which we will call Howell Motor Company, and against Bill Howell and his wife Mrs. Betty H. Howell as individuals.
The bill alleged that in the years 1952 and 1953 the Howell Motor Company had an agency for, and was engaged in, the sale of automobiles at Cleveland, Mississippi ; that complainant was in the business of financing automobile agencies; that the-complainant and Howell Motor Company entered into a written agreement under which complainant would purchase from Howell Motor Company, under terms detailed in the agreement, contracts and notes which the purchasers of automobiles would execute to Howell Motor Company for the unpaid purchase prices of automotive vehicles sold to such purchasers by Howell Motor Company. In other words
The bill further alleged that Howell Motor Company was then out of business and was insolvent.
It then averred that Bill Howell, on December 20, 1954, was the owner of a certain house and lot in the City of Cleveland, Mississippi, and that on that day he executed a deed undertaking to convey the title to said property to Mrs. Howell; that this conveyance was without consideration and it was made with the intent to, and it did, defraud creditors, including complainant.
Howell was not served with personal process and he did not answer. Nor did Howell Motor Company answer.
Mrs. Howell answered, saying, in effect, she was not informed as to the various business matters existing between Howell Motor Company and Bill Howell and complainant. She admitted that Howell Motor Company was out of business; admitted she had purchased the automobile from Howell Motor Company and had executed the conditional sales contract and note for the purchase price. She admitted that Bill Howell had executed to her a deed to the Cleveland property but contended that it was a homestead; also that Mr. Howell
Mrs. Margaret Murphey Norman intervened in the cause. She asserted that Mr. and Mrs. Howell, on May 28, 1955, entered into a written contract with her under which she agreed to purchase and they agreed to sell to her the Cleveland property for the sum of $28,500, including certain household and kitchen equipment, as described in the contract. The purchase price was to be paid in cash after deducting $11,848.66 secured by a deed of trust against the property. She asserted she was ready and willing to carry out this agreement and that she was in the position of an innocent purchaser for value. She asked that the contract be carried out. We do not further detail the circumstances surrounding this purchase agreement because all parties gave tacit consent to the carrying out of the arrangement.
The chancellor decreed that Howell Motor Company and Bill Howell were indebted to complainant in the sum of $14,035.96 and $500 attorney’s fee. He rendered a personal decree against Howell Motor Company for that sum. He did not enter a personal decree against Howell because service of process was not had upon him and he did not appear, but he did decree that the net
Prom this decree Mrs. Howell alone appeals here. She does not here contest performance of the purchase arrangement with Mrs. Norman.
She does urge on this appeal (1) that the cause should be reversed and remanded because the chancellor excluded the deposition of Bill Howell; (2) that the conveyance to her of the Cleveland property was legal and valid, free of any claim of complainant, because (a) Howell held title thereto in trust for her, (b) that the conveyance was for a valuable consideration, and was not fraudulent as to complainant, and (c) the property was a homestead; (3) that the chancellor wrongfully held that the Chrysler Airtempt conditioning unit was a fixture and part of the realty.
Complainant-appellee contests these contentions. We will discuss and decide them in the order stated.
When the case was tried Mr. and Mrs. Howell were residing in Shreveport, La. As stated, Mr. Howell was not served with personal process and he made no
Mrs. Howell says the conveyance of the Cleveland property to her by Bill Howell December 20, 1954, vested in her the legal title to the property because Bill Howell had title thereto as trustee fQr her. There was no express trust and nothing of record to give notice of any claim the title was being held in trust. It is said a constructive trust arose out of these circumstances: On December 31,1943, Mrs. Mecklin, the mother of Mrs. Howell, conveyed to Mrs. Howell a lot in Whitehaven, Tennessee. The Howells constructed a house on the lot. They‘ occupied the property as a homestead. On June 14,1945, they sold the property to Mr. Jode Sheehan and wife. Both Mr. and Mrs. Howell signed the deed. The difference between the indebtedness against the property and the purchase price thereof was $8,895.17. The purchasers gave Mr. and Mrs. Howell a check for that amount. Mrs. Howell endorsed that check. Howell deposited it to his credit at the hank, the net deposit, after payment of exchange, being $8,892.67. Mrs. Howell said in her answer
The chancellor found that the deed made by Howell to Mrs. Howell on December 20, 1954, conveying the honse and lot in Cleveland, was made with the intent to defraud the complainant as a creditor of Mr. Howell. The evidence amply justifies the finding. Many suits had been instituted against him; a number of judgments had been obtained; his automobile business had been closed down by action of the Mississippi Employment Security Commission; complainant had endeavored, without success, to have various conferences with him in an effort to collect the debt owing them; a number of times Howell had failed to keep his appointments with complainant ; he had conveyed to Mrs. Howell what is called Laben Bayou Plantation, containing 257 acres; and he had also individually and as trustee for his three children conveyed the Wilmot Plantation. In other words, he was disposing of all of his property and refusing to cooperate with complainant in an effort to discharge his debt to it. The record discloses other facts and circumstances justifying the finding of the chancellor. However, Mrs. Howell says she paid Howell ample consideration for the Cleveland property and, notwithstanding the intent of the parties to the deed, she got a good title to the property conveyed. She does not claim she actually paid Howell, any thing when the deed was executed. "What she says is that Howell owed her the money she let him have from the sale of the Whitehaven homestead, and she invokes the rule that a husband, though insolvent, has the right to prefer his wife over other creditors provided he owes her a valid debt equal to the fair value of the property convey, citing Graham v. Morgan, 83 Miss. 601, 35 So. 874; Kaufman v. Whitney, 50 Miss. 103
But Mrs. Howell urges that, even though nothing was paid for the deed, the property constituted the homestead and Howell had the legal right to convey it to her, to the extent of the homestead exemption of $5,000, even though both parties had the intent to defraud Howell’s creditors. In this contention we think appellant is correct. The evidence is all to the effect that on December 20, 1954, when the deed was executed by Bill Howell to the appellant, the property constituted the homestead of the parties. They and their three children were residing there. They had so occupied the property for a number of years. Howell did not go to Shreveport until January 1955. His wife and children continued to occupy the home. He came back to Cleveland from Shreveport a number of times. Mrs. Howell testified at the trial that she and the children moved to Shreveport some five or- six weeks before the trial. Mr. and Mrs. Howell obtained homestead tax exemption on the Cleveland home for the year 1955. No new home had been acquired by Mr. Howell when this deed was executed. While Mr. and Mrs. Howell had an agreement December 15, 1954, that they would live apart but not obtain a divorce, they seem to have shortly thereafter changed their intentions and continued to live together as man and wife, and were doing that in Shreveport when this cause was tried. Both Mr. and Mrs. Howell signed
The question naturally arises, under our holding, whether Mrs. Howell is entitled to the entire $5,000, free of the personal decree against her, or whether complainant has the right to have the-personal decree satisfied out of the $5,000, as a result of subsequent changes, if any, in the homestead status. The chancellor was not confronted with'this question on the former trial. We think it best that he pass upon it after full opportunity of all interested parties to be heard. Therefore, we remand the case so that the chancellor may determine whether or not the homestead status subsequently changed after December 20, 1954, in such manner as to render the proceeds of the sale to Mrs. Norman liable to
The chancellor held that the Chrysler Air-temp't air conditioner was a part of the realty. The evidence supports the conclusion.
Affirmed in part, reversed in part and remanded.
ON SUGGESTIONS OF ERROR
In her suggestion of error appellant directs our attention to a statement in our former opinion that ‘ ‘ The Howells constructed a house on the lot.” Reference was to the Whitehaven property deeded to Mrs. Howell by her mother. The record shows- that the house was on the lot when Mrs. Howell’s mother deeded it to appellant. The conference decided the case on the theory that the house and lot in Whitehaven was the property of Mrs. Howell, and the incorrect statement did not bear on our decision. The former opinion is modified so as to delete the quoted statement and so as to show that Mrs. Howell was -deeded a house and lot in Whitehaven.
,r Appellant also calls to our attention that the check for- the net purchase price of the Whitehaven property was made out to Mrs. Howell and not to her and her husband. The- record showed that Mrs. Howell was .not Sure how the check was made but the banker-testified positively that it was made out to Mrs. Howell. At that time- the money was' Mrs. Howell’s, and we deem it immaterial how the check was made out, but the opinion should show that it was made out.to Mrs. Howell.
\ After'further conference and consideration'of the cáse; we . are of the opinion that the suggestion of error, filed by appellant should be overruled.
We recognize the rule that permits a husband to prefer his wife over other: creditors, and also the rule that if the conveyance is otherwise valid it is partially good even if the property convéyed exceeds in value the debt, so that the wife is validly,preferred pro tanto;
Appellee also filed a suggestion of error, and it should be and is overruled.
Suggestions of error overruled and former opinion modified.