Opinion
No. 35086.
October 26, 1942.
1. JUDGMENT.
Judgment "lien" on land is a lien on the timber thereon before and after the timber is cut (Code 1930, sec. 611).
2. JUDGMENT.
A judgment lien on timber, in equity, follows the proceeds of sale thereof.
3. FRAUDULENT CONVEYANCES.
A transaction, whereby an insolvent debtor permits his land to forfeit for taxes and then permits his wife to buy the land in her name with his money, will be treated so far as creditors are concerned as a "redemption" by debtor.
4. FRAUDULENT CONVEYANCES.
Where insolvent husband and wife joined in conveyances to lumber company of timber on husband's land which was subject to judgment lien, and state thereafter acquired a superior tax title thereto and husband subsequently secured an advance from lumber company from balance due on purchase price of timber sufficient to purchase state's title to such land which he purchased in wife's name, title was, in fact, in husband and subject to the judgment "lien," and judgment creditor was entitled to balance of purchase price of timber remaining in hands of lumber company (Code 1930, sec. 611).
APPEAL from the chancery court of Scott county, HON. A.B. AMIS, SR., Chancellor.
O.B. Triplett, Jr., and Colbert Dudley, both of Forest, for appellant.
Where a husband is insolvent and allows his land to be sold to the state for nonpayment of taxes, if his wife buys in the property in her name the purchase will be presumed fraudulent as to his creditors.
Humphreys v. McKnight (Ark.), 152 S.W.2d 567; Herrin v. Henry, 75 Ark. 273, 87 S.W. 430; 26 R.C.L. 416, Sec. 372; 10 Ann. Cas. 986.
The same principle has been followed in Mississippi, especially in cases where fraud was involved.
Hardeman v. Cowan, 10 Smedes M. 486; Taylor v. Eckford, 11 Smedes M. 21; Cameron v. Lewis, 59 Miss. 134; Carter v. Bustamente, 59 Miss. 559; Robinson v. Lewis, 68 Miss. 69, 8 So. 258, 24 Am. St. Rep. 254, 10 L.R.A. 101; 27 C.J. 643, Sec. 408.
The lien on the land was also a lien on the timber, before and after the cutting.
Gerlach-Barklow Co. v. Ellett, 145 Miss. 60, 111 So. 92; Code of 1930, Sec. 611.
The judgment lien on the timber followed into equity the proceeds of the sale thereof.
Stone v. Townsend, 190 Miss. 547, 1 So.2d 237.
Frank F. Mize and Joe Sid Mize, both of Forest, for appellees.
There are cases in the Mississippi Reports holding that under certain circumstances a wife is incompetent to acquire a tax title in lands in which her husband has an interest; thus if he be a co-tenant with another, or if he bear any sort of a trust relationship to another concerning the land, she cannot acquire hostile to her husband or to his co-tenant, or cestui que trust. But if he does not bear any such relationship to another she is as competent to purchase his land at tax sale as any other person and by so doing acquires just as valid title against him and his creditors as any one else.
That being our conception of the law, we think that when Mrs. Pickett acquired a forfeited tax land patent from the state she got a perfect title as against John Pickett and his creditors whether judgment creditors or otherwise.
Because of the peculiar relationship existing between husband and wife, we think it would be true that if the husband's money was used to acquire the title in the name of the wife, even with his consent, she might be held as trustee for his benefit. But the facts of this case show that none of John Pickett's money was so used. On the contrary, the money to acquire the tax patent was furnished by Lackey Lumber Company and that identical money was taken and used for that purpose.
Besides, we think the case of Dozier v. Lewis, 27 Miss. 679, would be controlling here even if the judgment lien of Stuart had existed on the land at the time the timber was cut. Because while he had a lien on the land yet when the timber was severed and moved off the land it became personalty, and Stuart had no title to the timber nor any specific lien upon the timber after it was severed and moved away, but only a right to levy on it and have it sold to satisfy his claim.
Even conceding that he had a judgment lien on tho land, yet we do not think he has any lien on the money or any right to have it appropriated to the payment of his judgment debt under facts of this case.
The parties to this cause are N.T. Stuart, appellant, and the appellees are the Lackey Lumber Company, a partnership, and John Pickett and his wife. The Lumber Company was indebted either to Mrs. Pickett or Stuart in the sum of $138.50. The question for decision is to whom the money belonged. The lumber company filed its bill of interpleader in the chancery court, making all the other parties to this cause defendants. The hearing on bill, cross-bill of Stuart, and answers and proofs, resulted in a decree in favor of Mrs. Pickett. From that decision, Stuart prosecutes this appeal. The question arose out of the following state of facts: John Pickett owned 80 acres of land which was no part of the homestead and therefore not exempt. He sold the timber on it to the Lackey Lumber Company, a consideration of $250 to be paid. His wife joined in the conveyance. At the time of the conveyance and for some time prior thereto, Stuart was the owner of an enrolled judgment in the sum of $79.50 and interest and costs against John Pickett. While these conditions existed, the land was forfeited to the state for its taxes. The state's title matured. Thereupon, John Pickett induced the lumber company to advance him $42.50 out of the balance due him on the purchase price of the timber with which to purchase the state's title to the land. He took these funds and paid for the state's title and received the state's deed thereto, in his wife's name.
The chancellor held that Mrs. Pickett got the state's title to the land and was, therefore, as against the judgment creditor Stuart, entitled to the balance due by the Lackey Lumber Company on the purchase price of the timber. When the state's title matured to the land, it was freed thereby from both Stuart's judgment lien and Lackey's conveyance of the timber. In other words, the state held the land unencumbered by either. After the conveyance from the state, the status quo with reference to the timber was restored, Pickett and his wife both having joined in the conveyance of the timber to the lumber company. If, by the conveyance from the state, Mrs. Pickett got the state's title, she was entitled to the balance due by Lackey on the timber conveyance. On the other hand, if her husband, John Pickett, became the owner of the title, his judgment creditor Stuart was entitled to subject the balance to his judgment; so the whole case turns on whether Pickett or his wife got the state's title. We are of the opinion that he did, not his wife, and we reach that conclusion upon the following considerations: These principles about which there is no controversy should be kept in mind: A lien on land is a lien on the timber thereon, before and after the timber is cut off. Section 611, Code 1930; Gerlach-Barklow Company v. Ellett, 145 Miss. 60, 111 So. 92. And a judgment lien on the timber in equity, follows the proceeds of the sale thereof. Stone v. Townsend, 190 Miss. 547, 1 So.2d 237. She did not pay the purchase money for the state's title but he did. It was paid out of the balance due him by Lackey for the purchase money of the timber. He managed and controlled the whole matter of the purchase of the land from the state; she had nothing to do with it, but he took the title, as shown, in her name. He was insolvent. "An insolvent debtor will not be permitted to let his land forfeit for taxes and then permit his wife to buy [the land] in her name with her money and all such transactions will be treated, so far as creditors are concerned, as a redemption by [the debtor]." (Emphasis ours.) Humphreys v. McKnight, 202 Ark. 715, 152 S.W.2d 567, 569; Herrin v. Henry, 75 Ark. 273, 87 S.W. 430. For a stronger reason, that is true where the wife does not furnish the money. Although there is no decision of our court directly in point, there are some declaring analogous principles. This is especially true where fraud is involved. Hardeman v. Cowan, 10 Smedes M. 486; Taylor v. Eckford, 11 Smedes M. 21; Cameron v. Lewis, 59 Miss. 134; Carter v. Bustamente, 59 Miss. 559; Robinson v. Lewis, 68 Miss. 69, 8 So. 258, 10 L.R.A. 101, 24 Am. St. Rep. 254; 27 C.J., Sec. 408, p. 643 The fact that John Pickett took the title in his wife's name instead of his own meant nothing less than that he thereby expected to defeat Stuart's judgment and probably other creditors.
Reversed and judgment here for appellant.