In the re the Estate of Roby
| Docket Number: | 2010-CA-00639-COA Linked Case(s): 2010-CA-00639-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-28-2011 Opinion Author: Barnes, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Wills & estates - Void deeds - Section 89-5-3 - Fraudulent conveyance - Section 15-3-3 - Lien on real property - Enrollment of judgment - Section 15-3-101(b)(iii) - Joint tenants with right of survivorship Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Dissenting Author : Irving, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 11-03-2009 Appealed from: Monroe County Chancery Court Judge: Jacqueline Mask Disposition: DENIED PETITION FOR WRIT OF EXECUTION AND FOR SALE OF REAL PROPERTY Case Number: 2005-570-48-M |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Hilda Jane Roby Kelly |
RHETT R. RUSSELL |
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| Appellee: | Theresa A. Roby, Mary Phyfer d/b/a SRT Investments, Garon Roby, Shane Roby and Sharon Roby Sargent as Administratrix of the Estate of Jimmy Dale Roby, Deceased | PRO SE, DAVID E. FLAUTT, ANTHONY RHETT WISE, ROBERT Q. WHITWELL | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Void deeds - Section 89-5-3 - Fraudulent conveyance - Section 15-3-3 - Lien on real property - Enrollment of judgment - Section 15-3-101(b)(iii) - Joint tenants with right of survivorship |
| Summary of the Facts: | Hilda Kelly filed a petition for execution with the Monroe County Chancery Court seeking the sale of real property that was owned by Jimmy and Theresa Roby, her deceased ex-husband and his widow, in order to satisfy a judgment of $6,000 that Jimmy owed Hilda. Named as defendants in the petition were Theresa; Theresa’s sister, Mary Phyfer d/b/a SRT Investments; and, in a subsequent amended petition, the estate of Jimmy Roby – Sharon Roby Sargent, Shane Roby, and Garon Roby. In the petition, Hilda claimed her judgment should be treated as a lien against parcels of real property owned by Jimmy and Theresa prior to his death, and which had been conveyed by four deeds to SRT Investments, a company owned by Mary. The deeds were executed by Jimmy and Theresa prior to Hilda’s judgment being awarded; however, the deeds were not recorded until after Jimmy’s death and after Hilda’s enrollment of her judgment. Hilda filed a Motion For Default Judgment or In The Alternative Summary Judgment. The chancery court held that the deeds were void as to Hilda’s judgment since the deeds were recorded subsequent to Hilda’s judgment. However, as Hilda had not executed on her judgment prior to Jimmy’s death, the property passed to Theresa through right of survivorship and was not part of Jimmy’s probate estate. The chancellor ordered that any judgment owed to Hilda must be paid from the personal property of Jimmy’s estate and denied Hilda’s motion for summary judgment. Hilda appeals. |
| Summary of Opinion Analysis: | Section 89-5-3 provides that all conveyances of lands shall be void as to all creditors unless they be acknowledged or proved and lodged with the clerk of the chancery court of the proper county, to be recorded in the same manner that other conveyances are required to be acknowledged or proved and recorded. However, as between the parties and their heirs, said instruments shall nevertheless be valid and binding. No one contests the chancellor’s ruling that the deeds were void as to Hilda under section 89-5-3. The chancellor further found, however, that since the conveyances to SRT Investments were void as to Hilda’s judgment, Jimmy and Theresa still held the property as joint tenants with right of survivorship. The chancellor concluded that since Jimmy’s interest in the property was conveyed immediately to Theresa upon his death, it “would not be subject to post-mortem execution by his judgment creditor[.]” Thus, Theresa obtained full ownership of the realty after Jimmy’s death, and the property would not be part of the probate estate. Hilda argues that: the conveyances to SRT Investments were fraudulently conveyed and should be considered void as to Hilda under section 15-3-3 and set aside; that her judgment attached by operation of law in 1995 when Jimmy failed to make child-support payments; and since the conveyances to SRT Investments are valid between the parties, the joint tenancy held by Jimmy and Theresa was severed, allowing Hilda’s lien to attach to the property. In effect, Hilda wants to benefit from a determination that, as it relates to her judgment, the deeds are both void yet simultaneously valid. However, Hilda has not provided any authority to support such a legal conclusion. Hilda’s petition for execution requested that, as alternative relief, the deeds be set aside since the “transaction was an attempt to defraud Petitioner as a creditor.” Although this language was not contained in Hilda’s amended petition, it did state that the conveyances to SRT Investments “were conducted with an intent of avoiding the claim of Petitioner as a creditor of Jimmy Dale Roby.” However, the record does not reflect that Hilda provided any authority (e.g., section 15-3-3) to support this claim. Furthermore, she never pursued a ruling on this issue. Accordingly, this issue is waived. With regard to her argument that “[a] judgment debtor and judgment creditor relationship existed between Jimmy and Hilda from and after June 1, 1995,” the date Jimmy failed to continue making child-support payments, there is nothing in the record to reflect that Hilda ever presented this argument to the chancery court. Thus, this issue is waived on appeal. In addition, it is without merit. Hilda did not enroll her judgment until after the deeds to a third party, Mary d/b/a SRT Investments, had been executed; thus, the monthly child support owed by Jimmy did not constitute a lien upon the real property. Hilda’s main contention is that, since the March 3, 1999 conveyances “were valid as to Jimmy and [Mary,]” Jimmy and Theresa “divested their ownership interest” and terminated the joint tenancy, including the right of survivorship. Therefore, she argues that Jimmy conveyed the property to Mary “subject to the right of Hilda as judgment creditor to have the property seized under writ of execution for satisfaction of her judgment. The judgment lien followed the land and not Jimmy to his grave.” Section 15-3-101(b)(iii) provides that assets of a debtor do not include an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant. Accordingly, Hilda never had any possibility of a judgment lien over those particular parcels of property that Jimmy and Theresa held as tenants by the entirety. Regardless, any right Hilda had to execute her judgment on the jointly held property ceased to exist upon Jimmy’s death. Hilda’s claims are an attempt to be placed in a better position than she would have been had the conveyances not been executed, which is not the aim of equity. Thus, even if the conveyances to SRT Investments were fraudulent, and thereby void as to Hilda’s claim, Jimmy and Theresa still held the property as joint tenants with right of survivorship, as if the conveyances had never occurred. |
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