Opinion
March 14, 1949.
1. Attachment in chancery — levy of attachment necessary to create lien on land.
In an attachment in chancery to recover amount alleged to be due complainant by non-resident defendant, the issuance and levy of the writ of attachment are necessary to create lien on the land of the non-resident and the mere filing of a lis pendens notice was insufficient to create a lien paramount to others thereafter created.
2. Intervention — permitted to remove clouds on title of intervenors created by proceedings in suit.
When a complainant in an attachment in chancery has created a cloud on the title of third persons by a lis pendens notice filed in his suit, third persons who claim the lands involved on an interest therein may intervene to remove the cloud on their title created by the lis pendens notice, and intervenors by their intervention do not waive their right to raise the question that without the issuance and levy of the writ of attachment in the suit, no lien against intervenors had been created.
3. Trusts — resulting trust — purchase of land by husband with money of wife, but deed taken in name of husband as grantee.
When land has been purchased by husband with funds solely furnished by wide and deed was taken in name of husband as grantee without wife's knowledge or consent, the husband will hold as trustee in a resulting trust in favor of his wife.
4. Trial — uncontradicted testimony — no right to reject if reasonable.
When the direct testimony of a witness is uncontradicted, either directly or by circumstances, and witness is not impeached in some manner known to the law, the testimony must be taken as true; and neither the chancellor nor a jury has an arbitrary right to disregard testimony which is neither inconsistent with the laws of nature, nor contradicted by direct or circumstantial evidence, and when circumstances are relied on for contradiction, the circumstances must be inconsistent with the truth of the testimony.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Coahoma County, R.E. JACKSON, Chancellor.
Roberson, Luckett, Roberson, for appellants.
An attachment suit in chancery is a proceeding in rem. The res must be brought under the control of the court. This is done, if personal property is desired attached, in the manner provided by Section 2731 of Code of 1942.
If real property is desired attached the directions of other and different statutes must be followed. We list them: Section 2731, Code 1942, Section 2686, Code 1942. Sections 1903 and 1904, Code 1942.
We thus see that two things are necessary if lands are to be attached: (1) A writ of attachment must be issued. (2) The writ of attachment must be levied by the sheriff as such writs at law are required to be levied on land.
The record shows without dispute that neither of the two requirements were met. No writ of attachment was issued. No writ of attachment was levied on the real property.
Since the real property involved in this litigation was never attached, and since the personal property attached was released by the decree of the trial court, it necessarily follows that the only thing appellee obtained in this proceeding is a personal judgment against Joe F. Ryals, effective as of the date of the decree.
Although no writ of attachment was issued in this case and the lands were never levied upon by virtue of any writ of attachment, we consider apropos these words from paragraph 488 of Griffith's "Mississippi Chancery Practice": "An attachment in chancery does not relate back to the date of the filing of the bill, but from the date of the levy."
Mr. Justice Griffith cites Slattery v. Renoudet, 125 Miss. 229, 87 So. 888, in support of his text. In that case, which was an attachment suit in chancery, the court said: "No lien could be established until the writ (of attachment) was served. It is the seizure of property under attachment proceedings that creates the lien on the property; inasmuch as no property except that sold by complainant was attached, the attachment fails."
Appellee, through his solicitor, filed a notice of this proceeding in the Lis Pendens Record of the county on June 13, 1947, and it may be argued that he is entitled to some rights because thereof. But that notice was, and is a nullity, being completely without authorization in law.
A party who begins a suit is authorized to file a notice thereof in the Lis Pendens Record of the county when he seeks to enforce a lien upon, right to, or interest in, the property described in the notice. Section 755 of Code of 1942. But appellee did not claim to have a lien upon, a right to, or an interest in, the real property involved in this suit at the time of its institution. The object of his suit is to subject the non-resident's alleged property to sale for payment of a claim based on a breach of warranty not connected with said real property. He does not seek to enforce a lien upon, right to, or interest in, such real property.
Had appellee proceeded properly and obtained a writ of attachment against the real property and had it levied upon the lands by the sheriff of the county, the sheriff of the county would have been authorized to file with the clerk of the court the proper notice for insertion in the Lis Pendens Record. See Section 756 of Code of 1942.
Katie Ryals, the payor of the purchase price for the property, has had the beneficial interest in this real property since its purchase from Nixon and Ellis. The general rule which sustains that statement is set forth in paragraph 440 of Restatement of the Law of Trusts, which is as follows: "Where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid, except as stated in Sections 441, 442 and 444."
The Mississippi authorities are in accord with the general rules set forth above. See the Mississippi Annotation to the Restatement of the Law of Trust.
There can be no real dispute about the fact that Katie Ryals made the $2,000.00 down payment to Mr. Johnston. Only three people — Katie Ryals, Joe F. Ryals and Mr. Johnston are in a position to know who made that payment. Katie Ryals says she made it. Joe Ryals says she made it. Mr. Johnston says she made it. Mr. Johnston receipted her for the money.
Neither can there be any real dispute about the fact that Katie Ryals paid the ten Johnston notes that were paid prior to the trial. She says she paid them. Mr. Johnston says she paid them. The cancelled notes bear endorsements to the effect that they were paid by her.
Nor can there be any real dispute about the fact that Katie Ryals paid the Costello notes that were paid prior to the trial. She says she paid them. No witness as much as intimated that she did not do so.
Katie Ryals made a most reasonable explanation of the source of the funds with which she made the cash payment of $2,000.00 and paid the Costello and Johnston notes. She has worked for the past twelve years, drawing a monthly salary in excess of $200.00, and she has an income from her home. Her total payments on the property have not exceeded $3,000.00, and it is certainly not unreasonable that a person with her income should have $3,000.00 to invest in property she desired.
There is no evidence to the contrary, either that Mrs. Ryals did not make the payments or that she did not have the resources with which to make the payments. The only evidence introduced by appellee was the testimony of appellee himself, in which he related a conversation with Joe Ryals wherein Joe Ryals is supposed to have told him, in the course of the discussion about a motor boat belonging to appellee: "I have got a piece of property down at Moon Lake Club House, and I would like to get that boat and take it down there", and the testimony of Stovall Lowrey, the attorney who prepared the documents that passed at the time of the sale of the real property, to the effect that the documents were prepared in accordance with the directions of Mr. Johnston.
The purported statement by Joe Ryals is no proof that Mrs. Ryals did not make the payments on the property. It is the sort of statement almost any husband would make about property owned by his wife, and it does not in any sense negative the testimony that the payments on the property were made by Mrs. Ryals out of her own funds.
We were at a loss to explain why the chancellor arbitrarily chose to disbelieve the testimony of Mr. Johnston, Mrs. Ryals, and Mr. Ryals. Perhaps the chancellor doesn't like people who deal in hundred dollar bills. Perhaps the chancellor doesn't like Ryals because he was in the used car business and was convicted, when he was seventeen years of age, of violation of the Dyer Act. Or perhaps he simply doesn't like their looks. At any rate, he had before him no testimony contrary to the testimony of Mr. Johnston, Mrs. Ryals and Mr. Ryals, and it cannot be disputed that he simply chose not to believe them.
But the chancellor has no such arbitrary power. He cannot arbitrarily disregard evidence that is not unreasonable and is not contradicted by either direct or circumstantial evidence. The presumption is that men testify truthfully, and their testimony cannot be ignored with justification.
We quote from paragraph 587 of Griffith's "Mississippi Chancery Practice" "In weighing the proof every presumption is to be indulged in favor of the credibility of each of the witnesses, and if in considering the evidence a sound and reasonable theory of it may be deduced which will not impute perjury to any witness that theory should be taken. Where there is apparent contradiction between witnesses it is the duty of the court first to undertake to reconcile and to follow the theory which will reconcile, and as the last alternate only that theory which will discredit some of the witnesses. Even where a case is made out by one witness only, and although he is somewhat discredited, yet unless the court can say, from other evidence, that the testimony is false or incredible it will be the duty of the court to act upon it as sufficient to support a decree. It is only when the testimony of a witness shows that he is without the slightest degree of intelligence that his testimony may be so completely disregarded as if it had never been taken, or when it is convincingly shown from all the evidence in the case that the witness has knowingly, wilfully and corruptly sworn falsely to some material fact therein." See also Jones v. Bank, 71 Miss. 1023, 16 So. 344; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; Wilson v. Blanton, 130 Miss. 390, 94 So. 214; Standard Oil Co. v. Henley, et al., 199 Miss. 819, 25 So.2d 400.
Appellants were not originally in the case. They were allowed to intervene by order of court. Their right to do so is clearly established by cases such as Slattery v. Renoudet, 125 Miss. 229, 87 So. 888.
The case just cited was an attachment suit in which the property attached was claimed by one not a party to the suit. Said the court: "The contention that the appellees Waddell-Williams Lumber Company, who brought from the Renoudet Lumber Company subsequent to the attachment, should not be allowed to intervene, and that the Renoudet Lumber Company should not be allowed to intervene, and that the Renoudet Lumber Company should not be allowed to reappear in court and make motion to cancel the lis pendens notice after it had been discharged by the former judgment as garnishee, is also unsound in our opinion. The lis pendens notice would appear to create a cloud on the title of these appellees. It might seriously affect their ability to sell or finance said property so long as the attachment proceedings stood against them. It is true it could file a separate bill to have those notices cancelled, but we think it could also intervene and prevent the establishment of a cloud by a judgment of the court. Whenever a party has a claim to property in litigation, which might be adversely affected by the litigation, though he is not a party to the litigation, he may become a party on motion for the purpose of protecting his own property from being jeopardized or his title from being beclouded."
Of course, appellants had no right to inject themselves into the controversy between appellee and Joe F. Ryals. Their participation in the litigation had to be limited to the protection of their property and of their interest in the property, in order that their title or their liens might not be beclouded by the decree in the case. To do that they had only to accomplish the cancellation of the lis pendens notice. The filing of that notice was the one and only thing done in the case up to the date of the decree that constituted a cloud on appellant Katie Ryals' title or on the other appellants' liens. The most appellants could do in the case was to ask a cancellation of the lis pendens notice. This they did.
Vincent J. Brocato, for appellee.
For the first time the formal written plea is made by appellants that no attachment process was ever issued in this cause, nor any thereafter served upon the defendant and Moon Lake property. It is fatally defective to appellants' contention that this objection to process is not made by the one person who could legally object thereto; namely, the defendant Joe F. Ryals.
But be that as it may, we of counsel for appellee are firmly convinced that even the entire absence of attachment process would not be fatally destructive of appellee's rights and demands in this suit. Griffith's Chancery Practice, Section 240.
And even after an adjudication upon the merits of the controversy, no formal objection was made by anyone to the insufficiency, irregularity, defect or invalidity of the attachment process. And now it is too late. Attachment is but process. Peters v. Finney, 20 Miss. 175, 12 S. M. 449.
And objections thereto for insufficiency, defect, failure or invalidity must be timely and seasonably made. And after a plea to the merits has been filed, it is too late. 6 C.J. 433; 7 C.J. Secundum 617.
Depending upon local practice there are several methods that may be employed to test the sufficiency, validity or failure of attachment process. It may be asserted by a motion to quash; a plea in abatement; a plea to the jurisdiction; or an answer presenting the single question of such sufficiency, validity, or failure.
When none of these methods are resorted to, and a general appearance is entered or a defense made upon the merits, it is the universal rule that the court thereby acquire full and complete jurisdiction. And all defects of process for insufficiency, or failure, or invalidity are held to be waived. 6 C.J. 433; 7 C.J. Secundum 617.
There exists still another cogent and unanswerable reason for disregarding the objections to the attachment process by the intervening appellants. Joe F. Ryals has seen fit to make no objection to the process and the intervening appellants are estopped to make the objection for him. Barrett v. Carter, 69 Miss. 593; Bank v. Solomon, 71 Miss. 889; Hawkins v. McAlister, 86 Miss. 84; Weaver Grocery Co. v. Cain Milling Co., 117 Miss. 781, 78 So. 769.
And so our situation is this: The property in litigation is situated in Coahoma County, and subject to the jurisdiction of this court. Joe F. Ryals and the intervening appellants here have entered their personal appearance, plead to and participated in the merits of the controversy. By so doing any objections to the attachment process have been waived. And the sole issue before this court is whether or not the substantive credible evidence supports the decision of the learned chancellor in decreeing the Moon Lake real property to have been that of Joe F. Ryals and not Katie Ryals.
Does the substantive credible testimony support the decision of the learned chancellor? We respectfully submit that aside from the evidence of the manual delivery by Katie Ryals of the $2000.00 to Mr. Johnston, and the manual payment of the Costello and Johnston, no real credible and substantive evidence was produced to prove that Katie Ryals was the owner of the Moon Lake property. The evidences of the fact that Joe F. Ryals owned the Moon Lake properties were many and preponderant.
We take issue with counsel for appellant that only the testimony of Mr. Douglas, and the testimony of Mr. Lowrey, supported the fact of ownership in Joe F. Ryals. This evidence was important. But we take the liberty of delineating some of the inescapable facts and conclusions relied upon by the chancellor.
1. In his sworn answer, Joe F. Ryals alleged that he "resides a part of each week" and "was spending no less than two or three days a week on said property". Katie Ryals was employed throughout the year by the Kroger Grocery and Baking Co. of Memphis, Tennessee except for a month or so of sickness during 1947. So at least the more beneficial use of the Moon Lake property was Joe F. Ryals.
2. The warranty deed from Nixon and Ellis was to Joe F. Ryals. The deed of trust from Joe F. Ryals to Stoval Lowrey, trustee for O.H. Johnston, recites "the wife (Katie Ryals) of the party of the first part also joins in this conveyance and in the execution of the indebtedness secured hereby . . ." The name of Katie Ryals does not appear in the first and granting paragraph thereof.
3. Though Katie Ryals claimed to be the owner of the Moon Lake property she never acknowledged the execution of the deed of trust to O.H. Johnston.
4. The deed of trust from Katie Ryals and Joe F. Ryals to Joe Hopkins, trustee for J.L. Roberson, Semmes Luckett and Shed Hill Roberson, recites the same is given to secure an indebtedness of $750.00 due and owing by Joe F. Ryals.
5. The deed of trust from Katie Ryals and Joe F. Ryals to Joe Hopkins and Harry G. Pierotti, trustees for J.L. Roberson, Semmes Luckett, and S.H. Roberson, recites the same is given to secure an indebtedness of $2500.00 due and owing by Joe F. Ryals.
6. Mr. Johnston as agent of Nixon and Ellis and Joe F. Ryals advised Mr. Lowrey to prepare the deed to "Joe F. Ryals."
7. The certificate of title of Stovall Lowrey to O.H. Johnston was for the use and benefit of "Joe F. Ryals".
8. Though Katie Ryals claimed she did not read the deed from Nixon and Ellis to Joe F. Ryals, she signed the above with the homestead provision therein.
9. The discussions with Mr. Nixon for the purchase of the Moon Lake property were made by Joe F. Ryals.
10. Katie Ryals did not know how much she owed Mr. Johnston or how she acquired the property.
11. Katie Ryals never carried $2000 on her person before this transaction or since the transaction.
12. Katie Ryals thought she owned the furniture but Joe F. Ryals owned the furniture. It is significant that the furniture and club-house were always conveyed together.
13. Katie Ryals was unable to say how she accumulated the twenty $100 bills paid to Mr. Johnston.
14. Though she was a woman of considerable means, Katie Ryals did not pay the taxes on the Moon Lake property.
15. Katie Ryals claims to have drawn as much as $2000 from the Krogers Employees Mutual Benefit Association, but the letter brought to Katie Ryals by Mr. Derryberry recited that Kroger's had loaned her $2000.
16. Part of the $2000 was accumulated by Katie Ryals from rentals on the house owned jointly with her husband.
17. Mr. Johnston told Joe F. Ryals and not Katie Ryals to go to an attorney.
18. Lee Collins worked for Joe F. Ryals on the Moon Lake property and to use the language of Joe F. Ryals, "that is the way he paid for the truck".
19. The statement rendered by Mr. Lowrey and Mr. Johnston was to Joe F. Ryals, 716 No. Avalon Ave.
20. The attorney's fee for the preparation of all papers for the sale of the Moon Lake property was paid by Joe F. Ryals.
21. It was nothing unusual for Joe F. Ryals to have $2000 in cash upon his person.
22. It was unusual for Katie Ryals to have $2000 in cash upon her person.
23. Greek P. Rice, an attorney of Clarksdale, Mississippi, was employed by Mr. Johnston for Joe F. Ryals.
24. The personal property on Moon Lake situate in the Moon Lake clubhouse was conveyed to Joe F. Ryals and not Katie Ryals.
25. Joe F. Ryals handled the details of the purchase of the Moon Lake property.
26. Katie Ryals handled none of the details of the purchase of the Moon Lake property.
27. The deed to the Moon Lake property was brought to Greek P. Rice by Joe F. Ryals and not by Katie Ryals.
28. The answer of Mrs. C.W. Costello, O.H. Johnston, and Stoval Lowrey, trustee, recites that the sale of the Moon Lake real property was to Joe F. Ryals.
Roberson, Luckett Roberson in reply.
Appellee does not take issue with the propositions of law advanced in our original brief. He tries to escape the effect of them, in so far as intervenors Roberson, Luckett and Roberson, and intervenor Pierotti, are concerned, by arguing that "by their voluntary appearance and intervention herein, by pleading to the merits of this controversy, and proceeding thereon without objection to trial and final decree, (they) waived any defects, irregularities or invalidity of attachment process."
Appellee bases his argument on Section 240 of Griffith's Mississippi Chancery Practice and several cases from this court which are to the effect that a party who voluntarily enters a personal appearance and pleads to the merits of a case cannot thereafter urge the invalidity of the process on which the jurisdiction of the court depends. It's proposition we do not gainsay. It simply has nothing to do with this case.
In the first place, we have never said that there was any insufficiency, irregularity, defect or invalidity in any process issued in this case. The summons which brought defendants Joe Ryals and Lee Collins into court conformed in all respects to the statutes and were properly served and returned.
Secondly, we do not challenge the jurisdiction of the trial court by pointing out that no writ of attachment against the real property was ever issued in this case. The trial court unquestionably had jurisdiction of the cause as an attachment in chancery because Joe F. Ryals is a nonresident and Lee Collings, a resident, was alleged to have in his hands personal property of such non-resident, which was made subject to the action of the trial court in the manner presented by statute. And personal service of process was had on both Joe Ryals and Lee Collins. The jurisdiction of the trial court was not dependent on the real property being attached.
These appellants — intervenors Roberson, Luckett Roberson and intervenor Pierotti — had the right to come into this case because, and only because, the lis pendens notice filed by appellee in the public records of the county constituted a cloud on the liens held by them against the real property and affected the enforcement thereof, and their right of participation in the case was limited to an attack on the validity of such lis pendens notice. They could not have had anything to do with the question whether Joe F. Ryals was indebted to E.E. Douglas as alleged in the complaint, or whether the attached truck was the property of Joe Ryals or Lee Collins. They could only attack that which was a cloud on their liens against the real property, which they did when they pointed out the illegality of appellee's lis pendens notice. The fact that no writ of attachment against the real property had been issued or levied certainly did not becloud their liens. They couldn't ask the court to declare that a writ of attachment against the real property had never been issued when no one claimed that such a writ had been issued. Their rights were not affected by something that never had any existence and there was no reason for them to fight a sham battle.
But appellee says also that Joe F. Ryals should have pointed out that no writ of attachment against the real property was issued or levied. It is sufficient answer to that to say that Joe Ryals' default in that respect, if default it was, could not be charged against appellants. Another answer is that Joe Ryals, as defendant in the action, was under no obligation to make the point that the complainant in the action had not seen fit to have a writ of attachment against the real property issued and levied. If the complainant in the action did not choose to have such a writ issued and levied, that was all right with Joe Ryals. He was in court by virtue of personal service of summons on him. He was in the trial court by virtue of the fact that he was a nonresident and it was claimed that a resident had personal property belonging to him. Joe Ryals had no choice about submitting his controversy with E.E. Douglas to the determination of the trial court. He took no steps which can be translated into a waiver of any requirements the statutes of Mississippi place on a complainant in an attachment suit.
We repeat that the only evidence out of which appellee can build a claim that the real property is the property of Joe Ryals and not of Katie Ryals is the testimony of appellee himself, in which he related a conversation with Joe Ryals wherein Joe Ryals is supposed to have told him, in the course of the discussion about a motor boat belonging to appellee: "I have got a piece of property down at Moon Lake Club House, and I would like to get that boat and take it down there", and the testimony of Stovall Lowrey, the attorney who prepared the documents that passed at the time of the sale of the real property, to the effect that the documents were prepared in accordance with the directions of Mr. Johnston.
The purported statement by Joe Ryals is not proof that Mrs. Ryals did not make the payments on the property. It is the sort of statement almost any husband would make about property owned by his wife, and it does not in any sense negative the testimony that the payments on the property were made by Mrs. Ryals out of her own funds.
Neither does the testimony of Mr. Lowrey contradict the testimony that the payments on the property were made by Mrs. Ryals out of her own funds. Suppose he did prepare the papers in a manner satisfactory to Mr. Johnston? Mr. Johnston himself says that he was not told to have the deed run to Mr. Ryals. Mr. Johnston says that he was told simply to have the papers fixed up, that he wasn't given any specific directions as to the name of the grantee. And we point out that Mr. Lowrey does not claim that either Mr. Ryals or Mrs. Ryals authorized him to name the former the grantee in the deed. Lowrey never saw either Mr. or Mrs. Ryals prior to the trial.
Appellee, however, lists twenty-eight other alleged facts which he claims supports the decision of the trial court. We will proceed to examine them with such claim in mind.
1. It is true that Joe Ryals spent more time on the property than did his wife. But that doesn't make it his property.
2. It is true that the deed from Nixon and Ellis and the deed of trust to O.H. Johnston indicate that Joe F. Ryals was the owner of the property. They were so drawn by Stovall Lowrey because he thought Joe F. Ryals was the owner of the property. The whole point of this part of the argument is that Mr. Lowrey was wrong in his assumption about the ownership of the property and that the documents prepared by him were incorrectly drafted.
3. The fact that Katie Ryals never acknowledged her execution of the Johnston deed of trust proves only that the whole transaction was handled in a haphazard fashion.
4. The fact that the Roberson, Luckett Roberson deed of trust secures an indebtedness due them by Joe Ryals proves nothing. It is certainly not unusual for a wife to secure the payment of a husband's debt by a lien against her separate property.
5. The same conclusion as that immediately above must be drawn from the fact that the Pierotti deed of trust secures an indebtedness due him by Joe Ryals.
6. The statement that Mr. Johnston advised Mr. Lowrey to prepare the deed to Joe F. Ryals must be viewed in the light of Mr. Johnston's statement to the effect that he was not instructed by either Mr. or Mrs. Ryals to have the deed drawn to Joe F. Ryals. It then loses all probative value.
7. Mr. Lowrey's certificate to the effect that a deed to Joe F. Ryals would pass title to the property is no proof that Joe F. Ryals thereafter became the owner. He could as well have certified that a deed to John Doe would pass the title to John Doe. The letter was evidently written as it was because of Mr. Lowrey's misunderstanding about the identity of the purchaser.
8. The fact that Mrs. Ryals signed the deed of trust as it was written proves nothing. She simply signed the deed of trust prepared by the attorney handling the transaction and had a right to assume that it was correctly prepared.
9. The fact that Joe Ryals had a discussion with Nixon about the purchase of the real property does not prove that his wife did not become the purchaser of it. It has never been held that a wife's property becomes the husband's property because the husband negotiated the purchase of it.
10. The statement that Mrs. Ryals did not know how much she owed Mr. Johnston or how she acquired the property is not borne out by the record.
11. The fact that Katie Ryals never carried $2,000.00 on her person before or since the transaction proves nothing. She herself testified that she brought the $2,000.00 down to Moon Lake only because she knew that on that occasion she was going to buy the property and would have to have the money with which to make the down payment.
12. There is nothing inconsistent in Katie's Ryals' belief that she owns the furniture with her claim that she owns the real property. She bought and paid for it. Joe Ryals does not own the personal property. If the bill of sale was drawn in his favor, the naming of him as vendee was a part of the same mistake of the draftsman of the papers, who mistakenly assumed that Joe Ryals was the purchaser of the property.
13. Katie Ryals' explanation as to how she accumlated the $2,000.00 with which to make the down payment on the real property was quite reasonable and clear.
14. The fact that Katie Ryals did not pay taxes on the real property after the court had entered the decree that she didn't own it doesn't prove that she didn't own it.
15. Katie Ryals' claims about her transactions with Kroger's Employees Mutual Benefit Association are not inconsistent with the letter written to her by its Mr. Derryberry.
16. The statement that a part of the $2000.00 was accumulated by Katie Ryals from rentals on the house owned jointly with her husband is not borne out by her testimony as a whole.
17. The fact that Mr. Johnston told Joe Ryals and not Katie Ryals to go to an attorney proves only that Joe Ryals came down from Memphis to see Mr. Johnston about the error in the deed. Katie Ryals had a job which required her daily presence in Memphis, and there was no reason why her husband should not have come down to see about the matter for her.
18. The fact that Lee Collins worked for Joe Ryals does not prove that Mrs. Ryals was not the owner of the real property.
19. Mr. Lowrey's mistake in charging his fee to Joe Ryals and not Katie Ryals proves only that Mr. Lowrey made a mistake.
20. The fact that Joe Ryals gave Mr. Johnston $25.00 to give to Mr. Lowrey doesn't prove that Mrs. Ryals was not the purchaser of the real property.
21. The fact that Joe Ryals had at times $2,000.00 on his person is proof of no fact other than at times he had $2,000.00 on his person.
22. The fact that it was unusual for Katie Ryals to have $2,000.00 on her person is proof only of the fact that it was unusual for Katie Ryals to have $2,000.00 on her person.
23. Attorney Greek P. Rice was contacted by Mr. Johnston because of the error in the deed and for the purpose of having that error corrected.
24. The mistake of Mr. Lowrey in naming Joe Ryals the vendee of the personal property proves only the obvious fact that when Mr. Lowrey drew the papers in connection with this transaction, he thought Mr. Ryals was the purchaser of this property.
25. The fact that Joe Ryals represented his wife in the negotiations for the purchase of the property does not make the property his own.
26. The fact that Katie Ryals had her husband to represent her in the negotiations for the purchase of the property does not prove that she did not become the purchaser of it.
27. The fact that Katie Ryals, who was occupied daily in her job in Memphis, had her husband to bring the deed down to Coahoma County for correction does not prove that her husband owned the property.
28. The answers of Mrs. C.W. Costello, O.H. Johnston and Stovall Lowrey, trustee, were prepared by Stovall Lowrey and the fact that they are consistent with his testimony proves only that he does not admit that in the papers drawn by him in connection with the transaction the grantee therein was erroneously named.
We submit that there is not a single hard fact among the twenty-eight alleged facts urged by appellee in support of the chancellor's decision. In fact, his list illuminates the nakedness of his factual position.
Appellee, Douglas, brought suit by attachment in chancery for collection of $5,225 alleged to be due him by Joe F. Ryals, a nonresident, for breach of warranty in connection with sale of automobiles by Ryals to Douglas. Lee Collins, a resident, was also named as a defendant and was alleged to have in his possession a truck belonging to Ryals. The bill prayed for process as provided by law in cases of attachment in chancery, that decree be had against Ryals for the amount sued for, and that the truck in possession of Collins be subjected to complainant's demand. Ordinary summons was issued, with copy of the bill of complaint attached, and a copy was served on Collins and a copy on Ryals, pursuant to Section 2730 of the Mississippi Code of 1942 which deals with attachment on personal property.
Two days later Douglas filed a supplemental bill alleging that Ryals owned certain land in this State, as therein described, subject to two deeds of trust of record, one in favor of Mrs. C.W. Costello and one in favor of O.H. Johnston, in both of which Stovall Lowrey was named as trustee, and these parties were made defendants. The supplemental bill prayed for attachment of the real estate, for sale of the interest of Ryals therein, and for application of the proceeds of sale to complainant's demand. No writ of attachment was ever issued in the case and no levy was made upon the land. Instead, the complainant, by his attorney, filed a lis pendens notice giving the names of the parties, the description of the land, with the statement that by the suit it is sought to fix and enforce a lien against the land in order to effect a sale thereof and the application of the proceeds of sale to the payment of complainant's claim.
Mrs. Costello, Johnston and the trustee filed a joint answer setting up the said respective prior liens and praying that they be recognized and protected, and that any decree be made subject to their rights.
Joe F. Ryals answered and denied the indebtedness and denied that he owned the truck in possession of Collins and denied that he owned the land described in the supplemental bill. He alleged that the land was owned by his wife, Mrs. Katie Ryals, that it was purchased by her and all payments thereon had been made by her out of her own personal funds, that no part of the same was made by him, that the deed was made to him through error and mistake, and that in order to rectify this mistake he had conveyed the land to her.
Collins answered and denied that the truck in his possession was the property of Ryals, and claimed ownership thereof himself.
Mrs. Katie Ryals, Harry C. Pierotti, and Roberson, Luckett Roberson, a partnership firm, filed separate motions for permission to intervene, which motions were sustained and they filed their separate interventions. Mrs. Ryals alleged that the real estate was purchased by her, with her own personal funds, that the initial payment was made with her money and that she had paid with her own funds all installments thereafter falling due on the Costello and Johnston notes; that the original deed was made to her husband through mistake and that the same has been rectified by a conveyance from her husband to her; she also alleged that the aforesaid lis pendens notice creates a cloud on her title to the land, seriously affecting her ability to sell or encumber the same, and she prayed for a cancellation of the lis pendens notice as a cloud upon her title.
Harry C. Pierotti alleged in his intervention that he holds a valid deed of trust lien from Ryals and wife upon the land in suit, securing an indebtedness of $2,500, that his lien is superior and paramount to any right which complainant may have to subject the land to the payment of his claim against Ryals, that the lis pendens notice creates a cloud upon the lien of this intervenor which, unless cancelled, will seriously impair said lien and interfere with the enforcement thereof.
Roberson, Luckett Roberson alleged in their intervention that they hold a valid deed of trust lien from Ryals and wife upon the land in suit, securing an indebtedness of $750, and the same allegations are then made as contained in the Pierotti intervention.
The deed to Mrs. Katie Ryals and the deeds of trust to Pierotti and Roberson, Luckett Roberson, were all executed and placed of record subsequent to the filing of the lis pendens notice.
The Chancellor decreed a personal judgment in favor of Douglas and against Joe F. Ryals in the amount sued for, from which no appeal has been taken. The decree also adjudged Lee Collins to be the owner of the truck mentioned in the original bill, and no appeal has been taken therefrom. The decree then adjudged that Joe F. Ryals was and still is the owner of the land in question, that Katie Ryals has never been the legal owner thereof and that she does not have any right, claim, interest or title therein, and that the deed to her from Joe F. Ryals is fraudulent and void, and that the rights of Pierotti and Roberson, Luckett Roberson are subordinate and subject to the claims and demands of complainant who was adjudicated to have obtained a lien on the date of the filing of the lis pendens notice subject to the prior liens of Mrs. Costello and Johnston. The three interventions were denied and dismissed and the land was ordered to be sold, subject to the Costello and Johnston liens, to satisfy the indebtedness owing by Joe F. Ryals to Douglas, and the intervenors have appealed.
It is admitted by appellants that since summons was personally served on Joe F. Ryals on the original bill the trial court was authorized by Section 2729 of the Mississippi Code of 1942 to give a decree in personam against him, but it is contended (Hn 1) that the appellee has never obtained any lien upon the land for the reason that no writ of attachment was ever issued or levied thereon, and that the mere filing of a lis pendens notice by appellee's attorney is insufficient to create such a lien. We are of the opinion that appellants' contention is correct.
Section 2731 of the Mississippi Code of 1942, dealing with attachments in chancery against land, specifically provides "If the land of the non-resident, absent or absconding debtor be the subject of such suit, a writ of attachment shall be issued, and shall be levied by the sheriff or other officer as such writs at law are required to be levied on land, and shall have like effect."
Section 1904 of the Mississippi Code of 1942 provides "In case of a levy of an attachment on real estate in the occupancy of any person, the officer shall go to the house or upon the land of the defendant, and there declare that he attaches the same at the suit of the plaintiff; but if the land be unoccupied, or if the process be an execution, he may attach or levy upon the same by returning that he has attached or levied upon the land, describing it by numbers or otherwise properly, and, if the process be an attachment, stating that the land is unoccupied . . ."
Section 756 of the Mississippi Code of 1942 provides "When the sheriff, United States marshal, or other officer, shall levy upon real estate by virtue of any process, unless it be in execution upon a judgment which is duly enrolled in the county where the real estate is situated, he shall file with the clerk of the chanceray court of each county in which the real estate, or any part thereof, is situated, a notice of the levy, containing the names of the parties to the proceedings, the kind of process, and a description of the real estate levied on. . . ."
There is no contention by appellee here that any of the mandatory provisions of the aforesaid statutes were complied with. In fact the record shows conclusively that there was no effort to comply with any of them.
In Griffith's Chancery Practice, Section 488, it is said: "An attachment in chancery does not relate back to the date of the filing of the bill, but from the date of levy." And in Slattery v. P.L. Renoudet Lumber Co., 125 Miss. 229, 87 So. 888, 889, this court said: "No lien could be established until the writ was served. It is the seizure of property under attachment proceedings that creates the lien on the property."
We find, therefore, that the appellee obtained no lien upon the land involved in this suit, that the issuance and levy of a writ of attachment was absolutely necessary before such lien could be created, and that the mere filing of a lis pendens notice in this type of suit by counsel for the complainant was insufficient to create a lien paramount to others thereafter validly created.
(Hn 2) Appellee argues, however, that by their appearance herein the intervenors waived the necessity of issuance and levy of a writ of attachment. As heretofore pointed out, each intervention made a direct attack upon the lis pendens notice, alleged that the same creates a cloud upon the respective claims and liens of the intervenors, that their claims are superior to those of the complainant, and prayed for a cancellation of the notice as a cloud upon their respective claims and liens. Exactly the same situation prevailed in Slattery v. P.L. Renoudet Lumber Co., supra, wherein the court said: "The lis pendens notice would appear to create a cloud on the title of these appellees. It might seriously affect their ability to sell or finance said property so long as the attachment proceedings stood against them. It is true it could file a separate bill to have these notices cancelled, but we think it could also intervene and prevent the establishment of a cloud by a judgment of the court. Whenever a party has a claim to property in litigation, which might be adversely affected by the litigation, though he is not a party to the litigation, he may become a party on motion for the purpose of protecting his own property from being jeopardized or his title from being beclouded." To the foregoing we may add that by so intervening a party does not waive any defects theretofore existing in the proceedings. In this case the intervenors made a direct attack upon the abortive effort of complainant to obtain a lien upon the land; they alleged that their rights were superior to those of complainant and that the lis pendens notice created a cloud thereon which they were entitled to have cancelled. They followed precisely the procedure approved by this Court in the Slattery case and by so doing they waived nothing.
Appellant, Mrs. Katie Ryals, contends further that the Chancellor erred in decreeing that her conveyance from Joe F. Ryals is fraudulent and void and in cancelling all claim which she has to the land and in adjudicating Joe F. Ryals to be still the owner thereof. This contention necessitates a review of the evidence bearing in mind the rule that a Chancellor's finding on the facts is reviewable on appeal only when it is manifestly wrong and the further rule that his finding will not be disturbed on appeal where the evidence is conflicting or where there is enough competent evidence to sustain the decree. Griffith's Chancery Practice, Section 674.
Called as an adverse witness for cross-examination, Joe F. Ryals testified that in March 1947 he and his wife approached the owners of the property in question with the view of obtaining a price thereon, and the owners advised that the property was listed with O.H. Johnston, a real estate agent, and that they would have to see him. Later the two of them contacted Johnston and agreed upon a purchase price of $6,000 out of which Johnston was to receive a fee of $500, and the purchaser was to assume an indebtedness of $2,050 owing to Mrs. Costello, secured by a first deed of trust in her favor, and pay the remaining $3,950 in cash; to raise this cash payment $1,950 was borrowed from Johnston who took a second deed of trust as security and the remaining $2,000 was paid by Mrs. Katie Ryals to Johnston as agent for the owners. Mr. and Mrs. Ryals went back to their home in Memphis and Johnston engaged the services of an attorney in Clarksdale to prepare the necessary papers. This attorney never saw Mr. or Mrs. Ryals until the day of the trial. On instructions from Johnston this attorney named Joe F. Ryals as grantee in the deed. This deed was sent to Memphis and was there executed by the owners twelve days later and was then returned to Johnston. Some time afterward Mr. Johnston drove out to this property, which is on Moon Lake, and delivered the deed to Mrs. Ryals; they had company at the time and she did not read it but merely put it away. Later Mrs. Ryals paid notes to Johnston aggregating $500 and she also paid the notes to Mrs. Costello as they became due. Ryals testified positively that all of the aforesaid payments were made by Mrs. Ryals out of her own individual funds, and that no part of any of them was made by him. He said that Mrs. Ryals had saved a part of the money out of her earnings as an employee of Kroger Grocery Baking Co., of Memphis, where she had worked for about eleven or twelve years, and that she borrowed a part of it from the Kroger Credit Union.
Mrs. Katie Ryals was also called as an adverse witness and she testified that the original payment of $2,000 was paid by her and was her own personal money and that her husband advanced no part thereof; she also testified that out of her earnings she had paid $500 on the Johnston indebtedness and also all the Costello notes which had fallen due. She testified that she had been employed in the office at Kroger's for about twelve years, that her base pay was $200 per month and that she made overtime averaging from $15 to $35 per month additional, and out of these earnings she had saved a part of the original $2,000 consideration and had borrowed the remainder. She testified that when the deed was delivered to her at Moon Lake she did not read it, but carried it back to Memphis and placed it in the safe at the office where she worked, and she did not know that her husband was named as grantee therein until after this suit was filed on June 10, 1947; that after the filing of the suit she removed the deed from the safe and then discovered that she was not named as grantee therein, whereupon she employed counsel to protect her interest. Mr, and Mrs. Ryals both testified that when the $2,000 was paid to Mr. Johnston he gave a receipt therefor to Mrs. Ryals and not to Mr. Ryals, and that the whole transaction was her deal and not his.
Mr. Johnston testified that he was acting as agent for the original owners in making the trade; that on March 15, 1947, Mrs. Ryals paid him $2,000 to bind the deal, and he identified a receipt therefor which he gave to her on that date. This receipt was offered in evidence and shows that it was made to Katie Ryals and that "notes carried by Mrs. Costello will be transferred to Katie Ryals." Mr. Johnston testified that thereafter he employed an attorney in Clarksdale to prepare a deed of trust in his favor from Joe F. Ryals and wife Katie Ryals and also to prepare the deed from the owners. He said that he had not received any definite instructions as to who should be named as grantee in the deed and he instructed the attorney to make the deed to Joe F. Ryals. Johnston's deed of trust is dated April 17, 1947, and is for $1,950. He testified that he deposited the $2,000 to his own credit and issued his check to the owners for $3,450, and that the remaining $500 included in the deed of trust was his fee for handling the sale. He also testified that Mrs. Ryals had paid to him the total sum of $500 on this indebtedness and that Mr. Ryals had paid no part of any of the consideration in connection with the purchase. This witness had no earthly interest in the controversy and is apparently a reliable and trustworthy business man. The deed was executed to Joe F. Ryals by the owners on April 29, 1947, but was not filed for record until after the institution of this suit.
The attorney who prepared the deed and deed of trust testified that he prepared them at the instance of Mr. Johnston and in accordance with instructions given him by Johnston and that he did not at any time see or confer with Mr. or Mrs. Ryals in connection therewith, and did not even know them.
The only shred of testimony in the entire record in this case which even remotely tends to contradict the foregoing statements of the evidence is that of the appellee who testified that on one occasion, prior to the filing of this suit, Ryals was in his office and saw on the wall a picture of a boat and offered to trade a Cadillac car for the boat and said "I have got a piece of property down at Moon Lake Club House and I would like to get that boat and take it down there." We are unable to find in this statement any competent evidence which rises to the dignity of contradicting the undisputed facts shown by the record here. We have searched the record in vain in an effort to find something therein on which to sustain the decree. (Hn 3) Every witness who knew anything at all about the transaction testified positively that the property was bought with the individual personal funds of Mrs. Ryals and that all subsequent payments thereon were made by her out of her own earnings. Under this state of facts Mrs. Ryals would have been entitled to enforce a resulting trust in her favor. A.L.I. Restatement Trusts, Sec. 440; Shrader v. Shrader, 119 Miss. 526, 81 So. 227; Moore v. Moore, 74 Miss. 59, 19 So. 953; Robinson v. Leflore, 59 Miss. 148. In recognition of this right Joe F. Ryals executed a deed to her, dated July 21, 1947, and filed for record July 23, 1947. She was entitled to this deed and it validly conveyed to her the title to the land in controversy free of all claims of the appellee for the reason that the appellee, as hereinabove shown, did not obtain a lien on the land by the mere filing of a lis pendens notice without the issuance and levy of a writ of attachment. The Chancellor's finding that the conveyance to Mrs. Ryals by her husband was in fraud of his creditors is manifestly wrong and is not supported by any competent evidence. With reference to the Chancellor's rejection of all the evidence we find as particularly appropriate the following language of this Court in the case of Wilson v. Blanton, 130 Miss. 390, 94 So. 214, 216: "It is argued here that the chancellor is the judge of the credibility and weight of the testimony, and that he observed the witnesses testifying, and that he was under no compulsion to accept their statements as being true. (Hn 4) The rule is that the testimony of a witness which is uncontradicted, and who is not impeached in some manner known to the law, where he is not contradicted by the circumstances, must be accepted as true. It is true that the direct evidence of a witness may be contradicted by circumstances, but in such case the circumstances relied on for contradiction must be inconsistent with the truth of the testimony. `When the testimony of a witness is not contradicted, either by direct evidence or by circumstances, it must be taken as true.' Stewart v. Coleman [ Co.], 120 Miss. 28, 81 So. 653. This court has so held in many cases, and we hold that neither the chancellor nor a jury have an arbitrary right to disregard testimony, which is neither inconsistent with the laws of nature, and which is not contradicted either by direct or circumstantial evidence. The presumption is that men testify truthfully, and such testimony cannot be destroyed arbitrarily. There must be some legal reason for disregarding testimony. The mere fact that a trier of fact does not like the looks of a witness is not alone sufficient."
Accordingly the decree of the lower court is reversed to the extent that said lis pendens notice is cancelled and Mrs. Katie Ryals is held to be the owner of the land in controversy subject only to the first lien of Mrs. C.W. Costello, the second lien of O.H. Johnston, and the subsequent liens of Harry C. Pierotti and Roberson, Luckett Roberson, all of which are paramount to the alleged claim of appellee, and judgment will be entered here accordingly.
Reversed and judgment here.