Austin Clothing Co. v. Posey

Reed, J., delivered the opinion of the court. Appellants, creditors of J. L. Posey, filed their bill in chancery against appellees, seeking to set aside as fraudulent conveyances of property, certain instruments executed by him, being a deed of trust to a son, a deed of conveyance to another son, and a deed to his wife, claiming that they were for the purpose of defrauding appellants as creditors. On August 21, 1911, appellees filed their answer to the bill. On November 13, 1911, the complainants had the case set down for final hearing, on the issue docket upon [726] bill and answer. No proof was taken in the case. The chancellor, upon the hearing, dismissed the bill. lie. was correct in doing’ so. The answer presented fully and in detail a denial to the allegations of the bill. When it was set down by complainants, it was taken as true. Section 603, Code of 1906. Affirmed. ON SUGGESTION OE ERROR. This case was affirmed in October 20, 1913. In the opinion reported in 63 South. 224, we stated that the chancellor was correct in dismissing the bill, for the reason that the case had been set down for final hearing by the complainant upon bill and answer, only, no proof having been taken, on a date which then appeared to us to be before the expiration of the time allowed for taking testimony, and that the answer presented a full denial of the allegations of the bill. In the suggestion of error it is pointed out that, while the answer was filed on August 21, 1911, in the order rendered on July 4, 1911, overruling the demurrer, defendants were given sixty days in which to answer the bill, as of that term, and also that after the cause was set down for final hearing on November 13, 1911, it was, on November 16,1911, by order of the court, taken under advisement to be decided by the chancellor in vacation; and afterwards, by order dated December 18, 1911, remanded to rules, with permission to either party to take testimony. This we overlooked in our examination of the record in the former consideration of this case; The final decree shows that the cause was heard upon bill and answer, no proof being taken.by either complainants or defendants. The record does not show upon whose direction the cause was set down for final hearing. It appears from the final decree that complainants abandoned their efforts for cancellation of all the several conveyances, except the deed executed to Mrs. M. F. [727] Posey, by J. L. Posey, ber husband, conveying a house and lot in the town of Philadelphia, Miss. The contest in this case is confined to that property. On January 15, 1910, J. L. Posey executed a deed to his wife, Mrs. M. F. Posey, conveying to her the property involved. This deed was not filed for record until April 23, 1910. In the meantime, on February 15, 1910, the Austin Clothing Company obtained a judgment in the circuit court of Neshoba county against J. L. Posey for three hundred and nineteen dollars and eighty-five cents and costs, seventeen dollars and ninety cents, which judgment was enrolled on March 1, 1910. The rendition and enrollment of this judgment is alleged in the bill and also fully set forth in Exhibit A thereto. It will be seen that the judgment was a valid and subsisting lien against property owned by J. L. Posey before the deed which he made to his wife was filed for record. A conveyance of land between husband and wife is not valid as against third persons unless it is duly filed for record, in such manner as a mortgage or deed of trust is required to be filed. Possession of the property is not equivalent to filing the instrument for record. Sections 2522, 2787, Code of 1906. A closer inspection of the bill and answer convinces us that all of the material averments of the bill are not fully and specifically answered by the defendants. We do not find that the allegations in the bill, showing that the Austin Clothing Company had an enrolled and valid judgment lien before the deed from J. L. Posey to his wife became effective by being filed for record, are fully and specifically denied. In truth, after re-reading the pleadings, we fail to find in the answer any sufficient defense to the claim of the Austin Clothing Company that its judgment is a first and valid lien on the property. Answers to bills in chancery should be full, direct, and explicit. Section 584.of the Code of T906 requires that “the defendant shall answer fully all the allegations of [728] the bill without being specially interrogated,” and also provides that£ ‘ all matters of fact averred in the bill and not denied by tbe answer otherwise than by the genera! traverse, may be taken at the hearing as admitted.” We do not find that the allegations of the answer are adequate to show any title, legal or equitable, in Mrs. Posey, sufficient to defeat the claim of the Austin Clothing Company, a creditor holding a judgment lien, enrolled prior to the filing for record of the deed from her husband. It is contended by counsel for appellees that the answer, sworn to, was effective proof of the defense of equitable title in Mrs. Posey, on the hearing of this case upon bill and answer. The matters set up in the answer, as such defense, are affirmative. The burden of proving all affirmative allegations in an answer devolves upon the respondent. Wofford v. Ashcraft, 47 Miss. 641; Osborne v. Crump, 57 Miss. 622. It was incumbent upon appellees to prove such affirmative matters. Unless proved they were unavailing. No proof was adduced to establish the defense. The answer, though duly sworn to, is not the proof required. The assertion of the new and affirmative matter in the answer was not proof thereof. Brooks v. Gillis, 12 Smedes & M. 538; Miller v. Lamar, 43 Miss. 383; Park v. Bamberger, 52 Miss. 565; Rodd v. Durbridge, 53 Miss. 694; Dyer v. Williams, 62 Miss. 302. All of the judgments in favor of the other creditors, complainants with Austin Clothing Company in the original bill, were rendered and enrolled after the deed from J. L. Posey to his wife was filed for record. The conveyance was effectual as to all these liens. The record discloses that the residence property in Philadelphia conveyed by J. L. Posey to his wife is not now claimed by him to be exempt as a homestead. . In his answer he claims that the tract of land which is situated in the country is his homestead. The suggestion of error is sustained, and the decree of the chancellor in so far as it affects the claim of the [729] Austin Clothing Company is reversed, and judgment will be entered here in favor of tbe Austin Clothing Company subjecting the house and lot in the town of Philadelphia to its judgment lien. Reversed.