55 Miss. 656 | Miss. | 1878
Lead Opinion
delivered the opinion of the court.
On March 20, 1869, William Hester, being insolvent, and intending to prefer certain creditors, conveyed to L. K. Barber, by a conveyance absolute upon its face, and for the. nominal consideration of $31,000, all the property of which he was possessed, consisting of a plantation in Hinds County and another in Madison, with all the personal property on each, embracing large numbers of horses, cattle, etc., together with an undivided interest in large bodies of wild land in Adams, Yazoo, and Sunflower Counties in this state, and in the parish of East Feliciana, Louisiana.
The conveyance was made in payment and satisfaction of a debt of $3,000 due to Barber, who was the brother-in-law of the grantor, and of a debt of $8,000 due to Marshal J. Smith, his commission merchant and confidential friend, and of an alleged debt of $19,900 due to the wife of the grantor.
Barber at once made conveyances to Smith and Mrs. Hester of such undivided interests in the property as were agreed upon between the parties.
The original deed to Barber was recorded; those executed by him to Smith and Mrs. Hester were not. The debts due by Hester to Smith and Barber were genuine; that alleged to be due to his wife was grossly exaggerated, and the conveyance to her was, therefore, in great part, voluntary and fraudulent.
Appellant, Thomson, at this time, held a note against Hester, upon which there was due about $6,000, and which Hester
In October, 1869, Hester told Thomson that he (Hester) was broke ; that he intended to confess judgments in favor of Barber and Smith; and that the only chance for him .(Thomson) to realize anything on his claim was through an arrangement with Smith, who held a note against Thomson, upon which was due about $1,480. Acting upon the suggestion, Thomson, Smith, and Hester made an arrangement by which Smith surrendered his note for $1,480 against Thomson, and the latter transferred to Smith the note for $6,000 which he held against Hester. To partly compensate Thomson for the great loss sustained in the exchange, Hester executed to Thomson a new note for $1,400.
The day after the $6,000 note of ^tester was transferred to Smith, Hester confessed j udgment on it in favor of Smith, and execution thereon having been levied upon the Hinds-county lands formerly owned by Hester, the same were bought in at the sale by Barber, in behalf of himself and Smith and Mrs. Hester, as he testifies, though the deed was made to him alone. By subsequent arrangements and conveyances between the parties Smith became the exclusive owner of the Madison-county plantation and personalty, Barber of the Louisiana lands, and Mrs. Hester of the Hinds-county plantation and personalty, and of the wild lands in other counties in this state. Several years afterwards Thomson recovered judgment against Hester on the note for $1,400 executed to him at the time of, or a few days after, the exchange of notes above detailed. Wulla-bona return having been had thereon, he filed this bill to attack and vacate the several conveyances by which Mrs. Hester had become the owner of the property in Hinds County, and to subject the same to his judgment.
It is insisted that the bill will not lie, «because the note upon which his judgment is based was given after the execution of the deeds by which the property was conveyed first to Barber and then to Mrs. Hester, and that, therefore, Thomson, not
But Thomson did not know this, and he was informed at the time he transferred it that judgment was to be confessed upon it. Through this confessed judgment Mrs. Hester now holds title. By his transfer Thomson must be held to have consented to all legal advantages which could inure to any purchaser or holder under the judgment, which he knew was to be confessed; and even though the s'cheme resulted in a fraud upon him, he is estopped to complain by the maxim
Volenti non fit injuria
If, therefore, Thomson actually transferred the note to Smith, he cannot now attack the use to which lie was advised the latter intended to apply it; and Mrs. Hester, as a sub-purchaser under the judgment, will be protected, by reason of such purchase, even though she paid nothing and. her original demand against her husband was fraudulent. The good title acquired under the judgment to which Thomson had consented will, as to him, cure the previous invalidities in her title. Fulton v. Woodman, 54 Miss.
It is, indeed, impossible to imagine what use Smith could have for a note on Hester. Hester had already conveyed to him and Barber, and to his own wife, every dollar’s worth of
Mrs. Hester received from her father’s estate, at sundry times, various sums of money. This her husband had a right to repay to her, except that portion of it which was by her invested in slaves. The money received previous to the adoption of the Code of 1857 will bear legal' interest from the time of its reception until that Code went into effect, and one year afterwards; because, previous to that time, we had no law in this state restricting the right of the wife to demand interest from the husband to one year from the reception of it by him. Upon all sums received by the husband after that
We fell into the ei'ror, in Hill v. Bugg, 52 Miss. 397, of allowing a claim for negro hire received by the husband many years anterior to the accounting, and we now modify the opinion in that case in so far as it sanctions that result.
The decree is reversed and cause remanded, with the following directions : The sales under the executions will be enjoined. An account will be taken of the amount due Mrs. Hester, on the principles herein announced. A decree will then be entered requiring her to pay the amounts due on the judgments, in the order of their priority, in some short time to be named, in default of which the land will be sold, and the proceeds applied, first, to the satisfaction of the amount found due her, and then to the judgments according to their priority. She Avill be alloAved to enforce the Eveline Harvey judgment to the extent only of $1,000 Avith interest; but if the $1,000 paid by her upon such judgment is allowed her in the accounting bpfore the commissioner, then such judgment will be treated as Avholly extinguished.
Appellees Avill pay costs in both courts.
Let decree be entered accordingly.
Concurrence Opinion
concurring.
In Hill v. Bugg et al., 52 Miss. 397, we were called upon, as an incident to our decision of the main question in the case, to construe the proviso to article 28, page 337, of the Revised Code of 1857, and announced that it did not have the effect to bar the claim of the Avife if not asserted in one year, but to subject the husband to liabilityfor the income of the separate estate of his Avife for one year after his receipt of her estate. In other words, that the proviso was not a statute of limitations to bar the Avife, but a restriction of the liability of
We have, without being- thereunto moved by counsel, fully considered the matter, and avail of this opportunity to correct our former erroneous construction of the proviso mentioned, and to announce what we are satisfied is the true interpretation of it.
The doctrine of courts of equity, as stated by Story’s Equity Jurisprudence, section 1396, is not, ordinarily, to require the husband to account for the income, profits, and dividends of' his wife’s separate estate beyond those received by him during the then last year next before he is called on for an account; and we think the manifest purpose of the proviso was to adopt this rule, and to bar the wife from holding- the husband to an account for the rents, profits, or income of her separate estate after the expiration of one year from his receipt of such rents, profits, or income.
The rule of courts of equity stated above had not been adopted by the courts of this state, but was introduced by the-proviso above mentioned.