Thomason v. Neeley

Simrall, J., delivered the opinion of the court. Mary A. Neeley, who purchased the land in controversy at sheriffs sale, under executions issued upon j udgments, recovered against W. K. Thomason, exhibited her bill in chancery against Thomason and Hughes, to vacate and set aside a deed executed by Thomason, conveying the premises in trust to Sadler and Drake, with power to sell to pay the debts therein mentioned; and also to annul and cancel the deed made by these trustees to Hughes, who purchased at their sale. The ground of assailing these conveyances is, that they were contrived and made to hinder, delay and defraud the complainant and others, creditors of Thomason, of their debts, suits and damages. [313] It is not complained so much that the decree is erroneous, declaring tbe nullity of these deeds, as that there was error in not hearing Thomason’s cross bill and decreeing upon it. The cross bill claims that if the court should decree the trust deed and the conveyance to Hughes to be .void, as to the complaint, then it should assign and designate to Thomason two hundred and forty acres of the land as his homestead. We have held, in several cases, analogous in features to this, that as the statute condemned a fraudulent conveyance to be null and void as to the creditor, he has precisely the same extent of right against the property embraced in it as though it never had been made. In effect, the debtor owns the property with the same extent of interest as though he never had conveyed, and the creditor has a lien under his judgment, quite as controling over the title as though the fraudulent deed had never been executed. The creditor may treat his debtor as owner of the property, and may pursue his process for satisfaction as if the title were unembarrassed by the fraudulent deed. The parties standing in this relation to the property, the creditor can only sell under his execution so much oi the property as is not exempt from seizure aud sale. This right of Thomason to have been assured in his homestead exemption, by excepting it out of the operation of the sheriff’s deed to Mrs. Neeley, and designating and marking its boundaries, was a subject entirely appropriate to be presented in a cross bill. Since a cross bill is a proceeding to procure a complete determination of a matter already in litigation, the party is not as against the complainant in the original bill, obliged to show any ground of equity to support the jurisdiction of the court. Story Eq. PL, § 339. Burgess v. Wheate, 1 Eden, 190. The complainant seeks to establish her title to the entire tract of land, and to vacate the claims of the defendants under certain deeds. But Thomason claims if these deeds shall be cancelled as nullities, nevertheless he has an interest in the land, his homestead exemption, which he prays may be protected. This is mat [314] ter germaiu to and growing out of the subject of the original bill, and therefore fit to be preferred in a cross bill. Daniel v. Morrison, 6 Dana, 186. Rutland v. Paige, 24 Vermont, 181. At the same term, or shortly alter the original bill bad been ■dismissed, Thomason moved that the case be heard on the cross bill. The response of the court to that motion was a dismissal of the cross bill. If that order was predicated on the idea that the cross bill did not contain a subject connected with the matter of the original bill proper to be litigated in that form, as an auxiliary and dependency of the original suit, it would, as we have seen, have been a misconception of the rule. We do not consider the action of the court as resting upon that ground, or as at all passing upon the merits of the cross bill. The answer and cross bill were filed on the-day of-, 1867. The decree dismissing the original bill was rendered April '22, 1872, nearly five years after the filing of the answer and cross bill. In the mean time no steps were taken under the cross bill. No subpoena was taken out against the complainant; indeed, no defendant is made to it, nor is process prayed against any person. These were necessary in order to make and bring before the court the necessary parties. The appearance of a defendant to across bill is enforced in the same manner as to the original bill. 2 Daniel Oh. Pr., p. 1652. The statute of February 15, 1888, changed the practice as it had prevailed in chancery courts in two particulars. First, the defendant might introduce new matter material to his defense, and call upon the complainant to answer the same on oath, which the complainant must respond to, or the defendant may make his answer a cross bill against the complainant or against a codefendant or defendants, or all of them, “ upon which no subpoena shall issue, unless new parties are made,” but the complainant or codefendants shall answer thereto * * and on failure to answer, may betaken for confessed. Under this statute the answer might perform the office of a bill of discovery [315] simply, or that of a cross bill. Hut. Code, p. 770, § 1.' The revision of 1857, p. 548, art. 51, altered the statute of 1838, so as to require process against the defendants to the cross bill, and like proceedings thereon as in other bills or crossbills. This article 51 is brought forward into the Code of 1871, § 1030. The existing statute allows the answer to be made a cross bill against the complainant and codefendants or all of them, but returns to the practice which always prevailed in the chancery court, that the defendants thereto must be served with the same process used to compel the appearance of defendants to the original bill. The cross bill is auxiliary and a dependent of the original bill in aid of the defense thereto, so that the final determination may be complete as to the subject matter. It would follow that, ordinarily, the plaintiff in that bill should be prepared for hearing when the cause is heard on the original bill, and that a dismissal of the original bill would carry with it the cross bill. On that point see Ladner et al. v. Ogden et al., 31 Miss. Rep., 340, 344. The long delay and laches of Thomason in respect of his cross bill, justified the court in concluding that he had abandoned it, and that be had elected to rely exclusively on his answer. Whether the cross bill went along with the dismissal of the original bill or not, in that view of negligence and laches, the court did not err in dismissing it. Decree affirmed.