53 Miss. 721 | Miss. | 1876
delivered the opinion of the court.
In 1865, Austin Willis conveyed to his children a tract of land containing about one thousand acres, in repayment, as he claims, of certain money and property which he had received and used, belonging to his deceased wife, their mother. By mistake of the scrivener who prepared the deed forty acres of the land were omitted ; but the children took possession of all the land, which constituted a single plantation.
In 1872, the children, all of whom were adults, sold and conveyed the land, for value, to Lafayette Willis. In their deed to Lafayette Willis, the forty acres which had been omitted from the deed made by their father were embraced ; nor were any of the parties then aware that they had been omitted from the first deed.
Lafayette Willis took possession of the land, including the forty acres. One year after his purchase and possession, Jacob Gattman recovered judgment against Austin Willis, on a note given previous to 1865, and levied on the forty acres which had been omitted from the first conveyance, and the legal title to which consequently remained in Austin. Thereupon Lafayette Willis filed his bill, alleging the mistake, and praying its correction, and enjoining a sale of the land levied on. To his bill he made Austin Willis and his children parties defendant, as also Gattman. Austin and his children answered, admitting the mistake and offering to correct it.
Gattman, neither admitting nor denying the mistake, answered, charging that the original conveyance from Austin to his children was fraudulent as to existing creditors, of whom he was one, and that Lafayette Willis had notice of the fraud. He alleged further, that one of Austin’s children, Mrs. Leonora Thompson, was a married woman; and that though she had signed the conveyance to Lafayette Willis, she had never acknowledged it separately from her husband, and therefore had never conveyed the title ; and that she having fraudulently received the same from her father, the whole of her one-fourth interest in the tract was liable to his judgment.
He made his answer a cross-bill, praying to subject the forty acres, as well as the interest of Mrs. Thompson in the whole tract, to his judgment.
Lafayette Willis answered, denying that the conveyance from Austin to his children was voluntary, colorable or fraudulent, and averring in any event his innocence of any knowledge or participation in such fraudulent purpose or fact.
Upon proof taken, the Chancellor held that the conveyance from Austin Willis to his children was voluntary, and therefore void as to his creditors ; that Lafayette Willis could not assert against Gattman a right to reform and correct the mistake by which the forty acres had been omitted from the original deed ; that the one-fourth interest of Mrs. Thompson still remained in her, and, she being a voluntary grantee, that the same could be subjected to Gattman’s judgment. From a decree rendered in accordance with these conclusions Lafayette Willis prosecutes this appeal.
A careful examination of the testimony leads us to the conclusion that the conveyance by Austin Willis to his children was not entirely voluntary, but was excessive. He had received from his wife, in 1843, $3,000 in money, which, under the act of 1839, was her separate property. Mitchell v. Mitchell, 35 Miss. 108. This money he had the right to repay to her or her children, with one year’s interest thereon, which would make $3,300. Hill v. Bugg, 52 Miss. 397.
The negro property, for which he allowed his wife hires, was received previous to 1839, and therefore became the property of the husband. The land conveyed was worth, as shown by the testimony, $6,000 or $7,000, double the amount due; and, therefore, Gattman could subject one-half of it, in the hands of the children, to the satisfaction of his judgment. But it was conveyed by the children to Lafayette Willis, before the date of the judgment, for $6,300, paid in money; and
Can such a purchaser, having received a deed, from which a portion of the land intended to be conveyed was omitted by mistake, maintain a bill against a judgment creditor of the grantor to displace the apparent lien of the judgment on the omitted portion, and to correct the mistake ?
This question is answered in the affirmative by a uniform current of authorities. 1 Story Eq. Jur. § 165 ; Simmons v. North, 3 S. & M. 67 ; Wall v. Arrington, 13 Ga. 88 ; White v. Wilson, 6 Blackf. (Ind.) 448 ; Stone v. Hale, 17 Ala. 557 ; Mis v. Tousley, 1 Paige, 280 ; Gouverneur v. Titus, 6 Paige, 347. So much of the decree of the court below, therefore, as denied the relief prayed in the original bill as to the omitted forty acres, is erroneous.
Was that portion of the decree correct which subjected to the satisfaction of the judgment the undivided one-fourth interest of Mrs. Leonora Thompson in the entire tract?
Under the view taken by us of the testimony, the deed made by Austin Willis to his children, of whom Mrs. Thompson was one, was voluntary as to half the land, but supported by a valuable consideration as to the other half. They were seised then of the legal title to one-half of the land, as trustees for the creditors of their father. At the date of the rendition of Gattman’s judgment, Mrs. Thompson had made no valid conveyance to Lafayette Willis, her deed to him, without privy examination and acknowledgment, being a nullity ; nor was it competent to show by parol, in contradiction of the certificate, that there had in fact been a privy examination. O'Fer rall v. Simplot, 4 Iowa, 396 ; Hayden v. Wescott, 11 Conn. 129; Elliott v. Peirsol, 1 Pet. 338 ; Johnston v. Wallace, ante, 331.
It follows that, at the time of the filing of the bill and cross-bill in this case, the judgment creditor had the right to subject to his debt one-half of the interest of Mrs. Thompson in the land.
Could she defeat that right by thereafter voluntarily exe
If Gattman was the judgment creditor of Mrs. Thompson, Lafayette Willis could assert against him such equitable rights as he could assert against her, because the judgment creditor takes only the rights of his debtor; but where, as in this case, he has no equitable rights which he could assert against her, he would be powerless to assert any against her judgment creditor ; and, inasmuch as his rights against her are the limit of his rights against Gattman, it must follow that neither with nor without her co-operation can the right of the latter to subject one-half of her interest in the land to his judgment be defeated. She is to be treated as having made no conveyance whatever, and as holding one-half of her interest in the land as trustee for the judgment creditor.
We think, therefore, that the Chancellor was correct in holding that Mrs. Thompson could not confer any new rights upon Lafayette Willis by her second deed, but he should have limited Gattman’s relief, under his cross-bill, to one-half of her interest, she being a purchaser for value as to the other half.
The decree is reversed and cause remanded, that a decree may he rendered in accordance with this opinion.
