Levy v. Royston ( 1904 )

Oalhoon, J.,

delivered’ the opinion of the court.

Levy bled a creditors’ bill against Royston and wife, alleging a conveyance from Royston to his wife to be fraudulent, and praying its cancellation, and subjection of the land conveyed to his debt due from Royston, except so much of it as may be selected or allotted as a homestead. The bill describes the land alleged to be so fraudulently conveyed as the “south half of section 1 and the southeast quarter of section 2, in township 4, of range 1 west,” and charges that the conveyance of this land from the husband to the wife is void on its face because of invalid description of the land, but that it would deter purchasers from bidding at its sale This conveyance is made an exhibit to the bill, and it recites its consideration as “one dollar and for the love that I have for my wife, Mahalie Royston,” and its description of the property conveyed is “southeast quarter of (2) two, south half of one (1), said land being situated in Benton county, Mississippi,” omitting sections, township, and range. The joint answer of tbe defendants denies the debt and sets up usury, and denies that tbe conveyance is void or fraudulent, or without consideration. Proof was taken, and, in the afternoon of a day of the session of the court, the chancellor announced his decision orally for the preparation of a decree to the effect that complainant recover his debt, after purging it of usury, but denying the cancellation of the conveyance on the sole ground that it was void on its face for invalid description. The idea was that it was nothing, and therefore no obstacle to levy and sale under execution. In this attitude of the case the court ad-, joumed until the next morning; but, pending this adjournment, Boyston executed another conveyance to his wife, reciting a consideration of $800 borrowed from her, and describing the land properly. This conveyance was fled for record that morning at 6 o’clock a.m., before the court opened and before the decree was signed. Thereupon Levy moved the court to remand the cause to rules, with leave to him to amend Ms pleadings so as to attack tMs new transfer. The court overruled this motion, and entered decree in accordance with the oral announcement of the afternoon before.

We think it was error not to allow the amendment. But, aside from this, we do not think that, because of the invalidity of the description in the original conveyance, therefore it should not have been canceled, if the facts showed it was executed with a fraudulent purpose to defeat creditors of their right to resort to the land sought to be conveyed. As between Boyston and his wife, it was a valid paper, in so far as it conferred upon her, and those claiming under her, the right in equity to have it reformed to conform to the actual intention prompting its execution. This equity existing, the record of it might well deter purchasers from bidding, and buying a lawsuit. The doctrine of voidness for uncertainty, as applied to actions of ejectment, does not apply to this proceeding by a creditor. He has a right to a cancellation of this equity.

Reversed and remanded.