Carberry v. Lann-Carter Hardware Co. , 126 Miss. 293 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

Counsel for the appellants in their suggestion of error among other things say:

“We prided ourselves on the fact that we had written an unansAA^erable brief Avith reference to the errors of the chancellor in the lower court. The affirmance of the cause by the court without an opinion doesn’t give us an opportunity to demonstrate to the court wherein Judge Smith’s affirmance is error. . . . The legal principles involved and discussed by us in our brief are in our opinion of interest to the legal profession 'in this state.”

This is a bill filed by the appellee in the chancery court of Monroe county against Mrs. Emma Carberry, the widow, and James Carberry, Jr., a son of James Carberry, deceased, and against his said widow as his administratrix, the appellants, to subject to a judgment theretofore recovered by the appellee against the estate of said decedent certain lands alleged in the bill to be liable to said indebtedness. The cause was heard on bill, answer, and proof; and there was a decree sustaining the bill as to a certain interest in the six hundred forty acres of land involved, which the court found belonged to the estate of decedent, and liable to said judgment. From that decree there was a direct and cross-appeal.

On May 8, 1908, the decedent, James Carberry, who was the owner of a section of land described as section 32, township 13, range 8, Monroe county containing six hundre forty acres, made a voluntary conveyance of the same to the appellant, his son, James Carberry, Jr., who was at the time a mere infant, his .wife, the appellant Mrs. Emma Carberry, who owned no interest in the land, joining in the conveyance. The following is a copy of that part of the deed ont of which the questions in this cause arise:

“We reserve the possession and right of possession to. both and each of us, jointly and severally during our lives, and the life of the survivor to the above-described lands. We also reserve the right to commit waste on said lands, and to alter, repair,' tear down, or erect buildings, fences or any other fixtures. We also reserve the right to lease or rent said lands and to have and collect said rents for the above periods. It is our express wish and desire that our son, James Leo Carberry, do not sell said lands but reserve it for the heirs of his body.”

The deed was properly acknowledged by James Carberry and hig said wife, but was not filed for record until the 18th day of December, 1915. Between the date of the execution of said deed and the date it was filed for record the debt upon which the judgment is founded in favor of appellee was contracted by the deceased, James Carberry. The judgment thereon, however, was not recovered until after the deed had been filed for record, and after the death of the said James Carberry. Execution was issued on the judgment, and returned “nulla bona.” Furthermore, the evidence in the case shows that the decedent, James Car-berry, had not sufficient personal property with which to pay this judgment and his other debts.

The deed contains no words of grant whatever to the appellant Mrs. Carberry, but does contain the usual clause granting the fee to the son, James Carberry, Jr. It was contended on behalf of appellee that this deed excepted out of the conveyance to the son, James Carberry, Jr., an estate to the grantor, James Carberry, Sr., during, his own life, as well as during the life of his wife, the appellant, Mrs. Emma D. Carberry, and that on account of the fact that she had survived him there was left in him subject to appellee’s judgment, an estate in said land for the life of his said widow; and the court below so held. And it was further contended for the appellee that if Mrs. Carberry got any estate by the deed, good as between herself and husband, the conveyance was nevertheless void as to appellee under section 2522, Code of 1906 (section 2056, Hem-ingway’s Code). On the other hand, it is contended on behalf of the appellants that the deed in question reserved to the grantor an estate in the land conveyed during his lifetime, and an estate in his widow after his death during her lifetime, and therefore there was no interest in said land after the death, of the grantor belonging to his estate to be taken by said judgment.

It may be granted that by the deed in question James Carberry, deceased, conveyed or reserved to his wife a life estate in his lands, and it may be conceded that such conveyance as between them is valid, and still by virtue of section 2522, Code of 1906 (section 2056, Hemingway’s Code), under the facts of this case she holds such estate subject to appellee’s judgment.

Section 2522, Code of 1906 (section 2056, Hemingway’s Code), provides:

“A transfer or conveyance of goods and chattels, or lands, or any lease of lands, between husband and wife, shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be; and possession of the property shall not be equivalent to filing the writing for record, bnt, to affect third persons, the writing must be filed for record.”

Under the plain terms of this statute this deed did not take effect as to his creditors until filed for record; and when it was filed for record the debt which is the foundation of appellee’s judgment had been contracted and was owing by the husband. The deed was voluntary. Under the law a debtor cannot give away his property, even to his Avife, and thereby defeat his creditors. The deed, if valid as between the husband and Avife to reserve or convey to her a life estate in this land, is nevertheless void under this statute as to appellee’s judgment. The statute goes to the root of and solves the whole contention of appellant Mrs. Carberry against her. This is no new question in this state. By repeated decisions the ruling of the court in the instant case is sustained. McCrory v. Donald, 119 Miss. 256, 80 So. 643; Snider v. Udell Woodenware Co., 74 Miss. 353, 20 So. 836; Gregory v. Dodd, 60 Miss. 549; Black v. Robinson, 62 Miss. 68. Therefore, in considering and deciding this case, it becomes wholly unnecessary to go into the other questions raised on behalf of appellants. It is a well-settled principle that courts of last resort will not decide questions not necessary to be decided in order to dispose of a cause.

Suggestion of error overruled.