Dulion v. Harkness

Terral, J., delivered the opinion of the court. W. T. Harkness became the debtor of T. P. Dulion and of B. Tucei, and while such debtor he made a voluntary conveyance of a lot of land in the city of Biloxi to his wife, Mrs. Sadie Harkness. Thereupon Dulion and Tucei filed their creditors’ bill, under § 503, code 1892, to obtain a decree for their several debts against W. T. Harkness, and to set aside the conveyance of the lot of land by him to his wife as fraudulent and void as to them, and to subject the property so conveyed to the satisfaction of their demands, for all which they had a decree. Thereafter Harkness and wife moved upon and occupied said property as a homestead, and thereupon filed their supplemental bill, in the nature of a bill of review, to have their homestead right established and secured, and obtained an injunction against the sale thereof. Dulion and Tucei moved to dissolve the injunction because the supplemental bill of Harkness and wife was without equity, and asked for damages for the wrongful suing out of said injunction, which, if found to be wrongful, were agreed to be $50. The court overruled the motion to dissolve the injunction against the sale of the lot, and the defendants appeal. The sole question is whether a debtor, after having a conveyance of his property set aside as fraudulent, may set up a claim of the exemption of said property from sale by reason of his having made it his homestead since the decree avoiding [14] said conveyance. It is well settled at law that property upon which a judgment lien has attached may thereafter be made a homestead, and as such protected from any sale of it under the judgment. Trotter v. Dobbs, 38 Miss., 198; Irwin v. Lewis, 50 Miss., 363; Letchford v. Carey, 52 Miss., 791. It is not perceived why the rule in equity should be different from the rule established in courts of law. In our apprehension of it, the case of Jones v. Hart, 62 Miss., 13, determines the principle of the exemption of homesteads from sale under process at law to be applicable to like process of equity courts. By the plain letter of § 4226, code 1892, the only consequence of a voluntary conveyance of property by a debtor is to render it invalid as to his existing creditors, because as to them’ it is inequitable; but it is not inequitable to allow him to claim any rights he may have in,the property to which his title still.adheres as to creditors by construction of law. If it is his as to creditors, it is his so as to allow him to claim a homestead exemption in it. ’ In Kuevan v. Specker, 11 Bush, 3 — a case similar to this— the court said: “These appellees are asking now to subject the property to the payment of their debts, upon the ground that the conveyance to the son was fraudulent and void as to creditors ; and, if made liable by the chancellor, it must be for the reason that it is still the property of Theodore Kuevan, the debtor. If his property, himself and wife being still in possession, the creditors will not 'be allowed to say that we can subject it to satisfy our demands because he is still the owner, and at the same time deny his right to a homestead for the reason that he is not the owner. If the property is made liable for Theodore Kuevan’s debts for the reason that the conveyance is fraudulent and void, it must be sold subject-to the exemption made by law for the benefit of the debtor. A fraudulent conveyance does not enlarge the rights of creditors, but only leaves them to enforce such rights as if no conveyance had been made.” To the same effect are Vogler v. Montgomery, 54 Mo., 575; Cox v. Wilder, 2 Dill., 45 (Fed. Cas. No. 3308) ; Sears [15] v. Hanks, 14 Ohio St., 298 (84 Am. Dec., 378) ; McFarland v. Goodman, 6 Biss., 111 (Fed. Cas. No. 8789); Crummen v. Bennet, 68 N. C., 494; Wait, Fraud. Conv., sec. 46; Thomp., Homest. Exemp., sec. 408. It is a maxim that equity follows tbe law, and it applies especially to tbe construction and effect of statutes. Wherefore we are of the opinion that the rule in equity should be the same as at law. Affirmed.