Smith v. Allen, 39 Miss. 469

Smith v. Allen

39 Miss. 469 | Miss. | 1860

Handy, J.,

delivered the opinion of the court:

The bill in this case was filed by the appellees to recover a slave in the possession of the appellants. '

It appears that the appellants were judgment creditors of David J. Allen prior to the 3d November, 1858 ; that Allen had in his possession a slave which he had selected and claimed as his property exempt from execution under the statute, and that on that day he executed a deed of gift of this slave to his wife, they being then residents of this State, where they had resided for three or four years, and he the head of a family; that Allen, being a preacher of the Methodist church, and belonging to the Memphis conference and subject to its orders, left his residence at Holly Springs to attend the conference, which met at Trenton, in Tennessee, in December, 1858, not knowing whether he would remove from this State or not, but intending to accept whatever appointment should be assigned him by the conference, and that *474an appointment was assigned him out of this State, which he accepted, and, in consequence of that, removed from this State; that the slave was left in this State and was, in February, 1859; levied on under the execution in favor of the appellants against Allen, and sold, the appellants becoming the purchasers.

The first position taken for the appellants is, that the conveyance of the husband to the wife was made in contemplation of his removal from this State, and to secure the slave to the use of his family after such removal, which otherwise would work a forfeiture of the privilege of exemption secured to him by the statute ; and hence that the deed was a fraud upon the statute and void. It is said that there could be no motive for the act, unless it was to obviate the consequence of the removal, inasmuch as the slave was secured to him by the statute as long as he resided in this State, and after his death here belonged to .his wife.

But whatever might have been the force of this view if there had been no evidence in opposition to it, it is shown by the positive testimony of Allen that the deed was not executed with reference to his removal from this State ; that though he intended to accept-the appointment to be assigned to him by the conference, yet that he did not know where he was to go, and it was as likely that his appointment would be in this State as elsewhere. Moreover, it is not unreasonable or improbable that he should wish in good faith to give the slave to his wife so as to vest the title absolutely in her, thereby giving her the entire benefit of the property, and placing it in a condition in which he would have no trouble in defending his title. The bill states that the purpose in making the deed was to secure some small amount of property for the support of his wife; and certainly the execution of the deed was the most effectual mode of accomplishing that object.

We do not, therefore, consider this objection to the wife’s title valid.

It is, next, insisted that the deed is void as to the appellants who were creditors of the husband at the date of it, in virtue of the provision of Art. 28, Rev. Code, 336, which is in these words: “ Provided, that any deed from the husband to the wife, for her *475use, sball be void as against his creditors, who were such at the time of executing the deed,” &c. It appears to be conceded by the appellants’ counsel that a person holding property exempt from execution under the statute may make a sale or gift of it, except to his wife.

But it is contended, in behalf of the appellees, that'this case is not within the prohibition of the statute, because this slave, not being subject to execution, the rights of creditors could not be affected by the conveyance. And we consider this a correct view of the subject.

The object of the statute obviously was, to prevent frauds upon the rights of creditors, to whose claims the property conveyed by a husband to his wife was subject and ought to be applied. This valuable right of creditors was intended to be protected and frauds upon it prevented. But no reference was had to creditors in any other sense or to any other purpose; and though' persons were creditors generally of the husband, yet if a particular piece of property was wholly exempt from any liability to them, they could not be said to be creditors as to that property, so as to make a conveyance of that property a matter of concern to them. As to that property, the debtor would be considered as without creditors ; and the owner would have the right to dispose of it as though he had no creditors.

We are of opinion that the statute does not apply to property in the condition of the slave here in controversy; and that this objection to the deed is untenable.

Let the decree be affirmed.