Hogan v. Burnett , 37 Miss. 617 ( 1859 )

Harris, J.,

delivered the opinion of the court.

This bill is filed by the complainants to subject certain equitable estate of a defendant in execution to the equitable liens of the judgments they claim to represent.

The property sought to be subjected is in the hands of the respondents, and claimed by them under a sale by virtue of a trust-deed made to secure a bona fide loan of money.

The bill seeks to set aside the deed as “fraudulent on its face,” and to subject the equitable estate to the lien of these judgments.

Two insuperable objections to the relief here sought appear on the face of these proceedings. In the first place there is no allegation of fraud in fact contained in the bill, and no allegation that the deeds in question were made with the intent to delay, hinder, or defraud the creditors of the grantor, but an allegation that the deed “is void on its face, and fraudulent as to creditors.” Without this direct allegation of the intent to hinder, delay, or defraud creditors, the facts apparent “ on the face of the hill” would not be competent as evidence to establish the unlawful intent. The complainant must be held to the issue made by the allegations of the bill and the answer thereto.

But, again, the respondents to this bill are honafide holders of the possession of the property sought to be subjected long anterior to any lien which complainants set up. The judgments of complainants never were a lien on the equity here sought to be subjected to their payment, and the securities of Jones having acquired the legal title, with an equal equity in their favor, a court of equity will not disturb that title or equity, but permit the legal title to prevail.

Let the decree be reversed, and bill dismissed at complainants’ costs.

The same order is made in No. 8784, Hogan v. Garner, Neville & Co., depending on the same principles, and submitted with this case.