Shaw v. Millsaps , 50 Miss. 380 ( 1874 )

Simrall, J.,

delivered the opinion of the court.

On final settlement of her guardianship accounts with her ward, Yalentia Millsaps, Mary Shaw, her.guardian, was adjudged to pay her $2,536.09.

Execution issued upon that decree, and was levied upon the lands in controversy. The sale was arrested at the suit of Mrs. Mary A. Shaw (whose husband joined her for conformity), by injunction. She claimed to be the owner of the property, and darraigned her title through a conveyance made by Mary Shaw to one Warren in trust, to sell on nonpayment of a debt of about $9,000 from herself to Win. Shaw, and a sale and conveyance by the trustee to Mary A. Shaw, complainant.

Mrs. Millsaps and her husband, in their answer to the bill setting up the foregoing facts, impeach both the deed in trust to Warren, and his conveyance to Mary A. Shaw as executed in fraud and covin, with intent to hinder, delay, and altogether defeat Mrs. Millsaps in the collection of her debt against Mrs. Mary Shaw. The answer was made a cross bill, and concluded, among 'other things, with a prayer for setting aside and canceling these conveyances as obstructions in the way of fully reaping the benefits of the probate decree.

At the final hearing, that relief was granted.

In the progress of the suit Mrs. Mary Shaw died. It was assigned for cause of demurrer, by defendants, to the amended bill, that the personal representative and the heirs of Mary Shaw, deceased, had not been made parties. The names of the latter were given in one of the depositions.

The question, and the only one seriously urged by the appellants is, that it was error to set aside and annul the conveyances when the personal representatives and heirs of Mrs. Mary Shaw were not parties to the cross bill.

Mary Ann Shaw claimed title as purchaser at the trust sale. It is hardly controverted by the appellants that the trust deed, and the conveyance to Mary Ann Shaw are fraudulent as to Mrs. Mill-saps. If that be so, a decree dissolving the injunction and turning loose the execution, manifestly would have been right and proper. But Mrs. Millsaps, by her cross bill, sought affirmative relief, viz: the cancellation of the deeds, as casting a shade and suspicion over the title that might be passed at the sheriff’s sale under her decree.

It has always been held under the statute of frauds, that a deceitful and erroneous conveyance was only void as against the creditor * * * whose debt thereby might be disturbed, hindered or defrauded. Such is the fair intendment of the words of the statute. It is good as against the grantor, and vests the estate in the grantee, subject, however, to be defeated by the creditor or other persons injured thereby, and by him or them “only.” It is good against the heirs of the grantor.

The authorities are not agreed as to whether the heirs of the fraudulent grantor are necessary parties. In Smith v. Grim, 26 Penn. St., 95, it was held they were not, because they had no interest in the property. But in Gaylord v. Kelshaw, 1 Wallace, 95, it was ruled that the fraudulent grantor was a necessary party, and such was also the ruling in 17 Md., 526; Lovejoy v. Irelan; Beardsley Scythe Co. v. Foster, 36 N. Y., 566; Lawrence v. Bank of Republic, 35 N. Y., 324. But there is this further difficulty. The complainants in the cross bill must confine it to the parties to the original bill; new parties cannot be introduced.

The parties defendants to the original bill, are Valencia Millsaps .and her husband, the sheriff of Jefferson county, and Thos. Reed, the attorney for Millsaps and wife.

Under the practice, no other parties could be made defendants to the cross bill except the complainants and codefendants. It was not necessary that Mary Ann Shaw and husband should, in order to procure the relief they insisted upon, make any other persons defendants, than Mrs. Millsaps and her husband. These defendants could have successfully defeated the relief sought by proof that the conveyances to her were fraudulent. There is no doubt upon the authorities, that if Mrs. Millsaps had gone into chancery in ■aid of her execution, after she had made the levy, to displace these deeds as fraudulent, that the fraudulent grantor would have ■been a necessary party. To obtain such relief Mary Shaw and Warren, trustee, were necessary parties, especially the former. But Mrs. Millsaps did not, in the first instance, invoke that sort of •equitable aid, but was proceeding to sell the land under her process, which would have left the question of the fraudulency of the deeds, to have been litigated between the purchaser and Mary Ann Shaw. The question was to have been left open to investigation, in an ejectment by the purchaser, and if the fraud were established, would as effectually have defeated Mrs. Shaw’s title, as if litigated in chancery to avoid the deeds. The statute having denounced utter “ voidness ” of a fraudulent deed, the title is' esteemed as remaining with the grantor, for the purpose of paying bis debts. So that a sale of the property under the execution would have passed a good title, quite as available as though the fraudulent deeds had not been executed. But in the state of the pleadings, Mrs. Millsaps could not make her answer a cross bill for the purposes of cancellation, because she could not make Mrs. Mary Shaw a party defendant, she not having been a party to the original bill; nor was it necessary that she should have been. Such also was the case with respect to Warren, trustee.

We think, however, that the Chancellor might have declared in bis decree, that because the deeds under which Mrs. Mary Ann Shaw claimed the property were tainted with fraud, she had failed to establish her right to the property against Mrs. Millsaps, a creditor of Mary Shaw, have dissolved the injunction and dismissed the bill.

The pleadings were not in that condition, as to parties which warranted decree as rendered. The necessary parties to warrant a decree of cancellation were not before the court, nor under the practice, could they have been made defendants to the cross bill.

So much of the decree as directs a cancellation of the deeds will be reversed, and in lieu thereof a decree may be rendered in this court dissolving the injunction, and allowing a sale under process in the probate decree. Appellants to recover costs in this court, but to be taxed with costs in chancery court.