Pope v. Pope

40 Miss. 516 | Miss. | 1866

Handy, C. J.,

delivered the opinion of the court.

This was a bill in equity, filed by tbe appellants as creditors of W. M. Pope, for tbe purpose of setting aside two conveyances made by tbe latter, as having been made to binder, delay, or defraud bis creditors. Tbe first was a deed executed to W. P. Brantley as trustee, and embraced certain real and personal property, wbicb was conveyed to secure certain debts due by W. M. Pope to D. B. Nabors & Co. The second was a deed conveying absolutely to ~W. F. Brantley tbe same and other land, and other personal property.

At tbe date of tbe execution of these instruments, a suit at law was pending in tbe District Court of tbe United States, in behalf of the appellants, on wbicb a judgment would in a short time be rendered. Tbe judgment was rendered shortly after tbe execution of tbe deeds, and an execution was issued thereon, and levied on a part of tbe lands embraced in tbe deeds, and tbe appellants became tbe purchasers thereof at Marshal’s sale, and thereupon filed this bill for tbe purpose of having the deeds set aside as fraudulent and void. On tbe bearing, tbe court decreed that the first deed, of February 23,1859, was good and valid, and denied tbe relief sought as to that; but declared tbe second deed, of 9th April, 1859, fraudulent and void as to tbe appellants, and that it should be vacated and held for naught. From that decree, tbe appellants took this appeal.

The only question before us is as to tbe validity of tbe deed of 23d February, 1859.

It appears clear that this deed was made with intent, on tbe part of W. B. Pope, to binder, delay, or defraud bis creditors. Tbe suit of the appellants was then pending, and would shortly ripen into judgment; and tbe deed was intimately connected with tbe purpose wbicb led to tbe execution, shortly afterwards, of tbe deed of 9th April, 1859 ; and tbe result of both of tbe transactions was to place all bis property under conveyance, and beyond tbe reach of tbe appellants, his creditors, except cer-' tain slaves which be then intended to remove, and shortly thereafter did remove, out of this State. Tbe latter deed was declared void by tbe court below; and tbe former, though executed in February, was not recorded until April, though tbe objects professed to be intended by it would have required its prompt registration, to wit, to secure the property for tlie payment of tlie debt of Nabors & Co., since other creditors were moving against him. "When it was registered, it was done on tlie same date as the deed of 9th April, 1859, and, as it would appear, by Brantley. This circumstance, and other facts in tlie case, go to show that both deeds were executed by W. M. Pope with a fraudulent intent as to the appellants.

It appears to be conceded, by counsel for the appellees, that this is the character of the instrument, so far as W. M. Pope is concerned. But it is urged that there is nothing to show that Nabors & Co. had notice of this fraudulent intent; and that, inasmuch as they were honestly endeavoring to secure their debt, they must be considered as purchasers without notice, and their title is valid.

But they do not occupy the attitude of purchasers without notice, because it was not an absolute conveyance, but a mere security for their debt, and that a preexisting debt. In such case, it is settled that a party does not come within the exception of the 3d article of the Statute of Frauds, in favor of bond fide purchasers. Pack v. Harney, 4 S. & M.; Farmers’ Bank of Va. v. Douglass, 11 Ib. 469

Moreover, the record shows that the trustee had notice in law of the fraudulent intent .of the grantor; and the deed shows that he was acting in the matter by agreement between the parties, Pope and Nabors. Being the trustee for Nabors, and acting under his authority, notice to him was notice in law to Nabors.

We think, therefore, that the first deed must be held fraudulent as to the appellants.

The decree is reversed, and the deed of 23d February, 1859, held fraudulent as to the creditors of W. M. Pope, and declared void, with costs in this and the court below. And a decree is ordered accordingly.