Dorsett v. Breithaupt

Ethridge, J., delivered the opinion of the court. At the July, 1922, term of the circuit court of George county, judgment was rendered against C. T. Breithaupt, the husband of the appellee, and said judgment was duly enrolled, and thereafter execution was issued on said judgment and levy made on one Ford automobile and a bale of cotton. Mrs. Breithaupt filed separate claimant’s affidavits for the automobile and bale of cotton, claiming that the automobile and bale of cotton were her property and not that of her husband. She gave bond for the bale of cotton and had it released and sold, but the automobile [461] was left in possession of the sheriff. In the circuit court an issue ivas made up for the trial of the right to the properties between Mrs. Breithaupt and the appellant. The proof shows the bale of cotton to be worth one hundred twenty-four dollars and twenty-eight cents and the evidence shows that the bale of cotton was raised upon the lands owned by the husband, the judgment debtor, occupied by him as a homestead. There was no contract in writing between the husband and wife filed and recorded, nor any contract in writing at all; but the proof shoved that the wife employed people to cultivate the land and superintended the growing and ginning of the cotton. The facts in reference to the automobile are as follows: In May, 1919, the Lucedale Auto Company sold the automobile in question to O. T. Breithaupt, he paying part cash therefor and giving his personal note for the deferred part of the payment, the casli payment being $250 and the deferred payment $353. The proof showed that the money was advanced by the appellee to her husband and he ivas directed to purchase the car for her and was requested to sign her note for deferred payment as indorser, but instead of signing the note in this way as requested the husband gave his personal note for the balance of the purchase money. The proof for the claimant further showed that when the note matured she sold some cattle and borrowed some money and turned it over to the husband to pay the said note, which he did, all being done prior to the rendition of the judgment upon which the execution issued in this cause. The automobile Avas assessed to C. T. Breithaupt on the assessment rolls of the county, nothing other than a poll tax being assessed to the appellee. The automobile was registered also in the name of the husband, and the tags for the automobile each year were taken out in the name of the husband, but the money was advanced and paid by the wife, and it is in proof by other persons than the husband and wife that she claimed, used, and rented the au [462] tomobile as -belonging to herself. • The case was submitted to the jury, and the jury returned a verdict in favor of the claimant, from which the plaintiff in execution appeals. In the case of Fox v. Tyrone, 104 Miss. 44, 61 So. 5, it was held by this court that a piano selected, bought, and paid for by the wife with her own money is her property, notwithstanding the fact that her husband signed the deferred payment notes and the receipt was made out to him, citing Henry v. Dillard, 68 Miss. 586, 9 So. 298; Walker v. Marseilles, 70 Miss. 283, 12 So. 211. We think under this authority the judgment in so far as it affects the automobile in question must be affirmed. In reference to the bale of cotton we are of- the opinion that the judgment will have to be reversed. Section 2056, Hemingway’s Code, section 2522, Code of " 1906, reads as follows: “A transfer or conveyance of goods and chattels, or lands, or any lease of lands, between husband and wife, shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be; and possession of the property shall not be equivalent to filing the writing for record, but, to affect third persons, the writing must be filed for record.” In our opinion this section forbids the claim of the wife to the cotton grown upon the lands of her husband because the lease in such case could have no effect as to third persons, because not reduced to writing, acknowledged, and filed for record as therein provided. It is expressly provided in this section that the possession of the property shall not be equivalent to filing the writing for record, but to affect third persons the writing must be filed for record. The object of the statute would be defeated if the husband’s creditors could be defeated by showing a verbal lease or an unrecorded lease. As to the bale of cotton the judgment will be reversed, and judgment ren [463] dered for the appellant for one hundred, twenty-four dollars and twenty-eight cents with six per cent, interest from the date of the judgment below. Reversed in part, and affirmed in part.