
    J. E. Underwood v. W. M. Ainsworth.
    1. Husband and Wife. Lease betiveen. Recording. Code 1893, §$ 3393, 3294. Section 3394, code 1893, providing that no transfer of lands or chat- . tels between husband and wife shall be valid as to third persons, unless the conveyance be in writing' and recorded, applies only to transfers of property. It does not include a lease of land between husband and wife; this is regulated by g 3393 of the code, under which the lease, though, not recorded, is g'ood as to persons who have notice of the same.
    3. Same. Lease betiveen husband and wife. Validity. Notice. Code 1893, l\ 3393, 3394.
    Under $$ 3393, 3394, code 1893, if one who takes a trust-deed from the husband covering- the crops grown on land leased by him, has actual notice that the wife has subleased a part of the land, though by parol, the trust-deed will not affect the crop of the wife grown on the subleased land.
    3. New Tbial. Surprise. Diligence.
    
    A motion for a new trial, on the ground of surprise, will notbe granted merely on the showing that a witness f :r the opposite side has testified to important facts not previously disclosed and not alluded to in his testimony on a former trial, he not being questioned as to the discrepancy, and there being no effort to impeach or contradict him by proof that he had not delivered the same testimony as on the former trial.
    From the circuit court of Copiah county.
    HoN. J. B. ChrismaN, Judge.
    Replevin by appellant, as trustee, against appellee for a lot of corn. Judgment for defendant. Motion for new trial overruled. Plaintiif appeals.' The opinion contains a further statement of the case.
    
      R. N. Miller and H. T. Millsaps, for appellant.
    On the trial, over plaintiff’s objection, the husband was permitted to testify that Davis, Ellis & Co. not only had knowledge of the verbal sublease by the wife, but had suggested that she give the trust-deed to Ainsworth to secure a debt she owed him. A distinction was drawn between knowledge on the part of Davis, Ellis & Co. and the fact that they suggested giving the trust-deed to Ainsworth. This was error. Without reference to the statute fixing the rule of evidence, the distinction drawn by the court has no merit, for the trust-deed given to Ainsworth was for a pre-existing debt. Ainsworth parted -with no new consideration, and Davis, Ellis & Co. received nothing. Therefore, the waiver by the latter was without consideration and void.
    Section 2294, code 1892, makes all verbal contracts, such as the one relied on in this case, void. They cannot be created either directly or by estoppel. Montgomery v. Scott, 61 Miss., 409; Arnolds. JSUcins, 67 IÍ., 675.
    The case was forced to trial in the absence of plaintiff’s witnesses, and hence the statement of Brown is not controverted, as it could have been. We submit that the judgment should be reversed.
    
      George S. Dodds, for appellee.
    This case is easily distinguishable from Montgomery v. Scott, supra, and Arnold v. Ellcins, II. In each of those cases the wife was endeavoring to establish her right to property through a transfer from the husband not made according to the requirements of the statute. The statute fixes the rule of evidence by which such transfers are to be established. . This case rests on different grounds. Davis, Ellis & Co. knew that Brown’s wife had cultivated a part of the land rented by her husband from Millsaps.
    It makes no difference whether the sublease to the wife was valid or not, the title to the corn became absolute in Ainsworth on delivery to him.
    The conduct of Davis, Ellis & Co. in advising Brown to have his wife give the trust-deed to Ainsworth was a waiver of their rights as to that part of the crop. They are estopped to assert any claim thereto.
   Cooper, C. J.,

delivered the opinion of the court.

One Brown was the lessee of a tract of land, and executed a deed of trust on the crops to be grown thereon during the year 1893, to the appellant as trustee, to secure a debt due to Davis, Ellis & Co. The wife of Brown subleased from him, as he says, a part of the land, and gave a deed of trust on the crops to be grown thereon to secure a debt she owed to the appellee. Under this deed, the appellee has possession of the corn in controversy, which was grown on the land sublet to the wife. On the trial, the plaintiff having made a prima facie case, the defendant put Brown upon the stand as a witness, and offered to prove by him the fact that he had sublet a part of the land to his wife. The plaintiff objected to the introduction of this evidence, because it was an effort to prove by parol a contract between husband and wife, in violation of § 2294, code 1892, which declares that “a transfer or conveyance of goods and chattels or 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.” The court sustained the plaintiff’s objection, and ' ‘ the defendant thereupon stated that Davis, Ellis & Co. were estopped to deny this lease, because they would show by this witness that, at the instance of Davis, Ellis & Co., the witness’ wife had made to the defendant, Ainsworth, a deed of trust on this corn, and had, by the arrangement, secured a certain horse. ’ ’ The court thereupon admitted the testimony, and the witness stated, in substance, that he, the witness, had bought a horse from the defendant for $110, of which sum he' had paid $50; that defendant, in the beginning of the year, was pressing witness for the balance due, and threatened proceedings against witness unless the debt should be secured; that witness went to Davis, Ellis & Co., who were his merchants, and explained his situation to them, and requested them to advance the money to pay the debt due to the defendant. This they declined to do, but suggested to him that his wife should give defendant a deed of trust on the crop to be grown on the land she had leased from witness. On this testimony the court gave the general charge for the defendant.

On motion for a new trial, upon the ground that plaintiff had been surprised by the testimony of the witness, Brown, affidavits were read to the effect that the witness had testified in the trial of the cause in the magistrate’s court, and had not then said anything of the facts of which he had spoken on the trial .in the circuit court. Mr. Davis, of the firm of Davis, Ellis & Co., made affidavit that the statements made by the witness were not true, and Millsaps, the owner of the land, also made affidavit that he was present at the time, and that nothing had been said by Brown to Davis, Ellis & Co., or by that firm to Brown, in reference to the wife giving a deed of trust on her crops to secure Ainsworth. In Davis’ affidavit he says that he had never heard of the alleged conversation referred to by the witness, Brown, ‘' until the case was called in the circuit court.” It does not appear in the bill of exceptions that the witness was asked to admit, deny, or explain why, on the trial in the magistrate’s court, he had not testified as he did on the trial in the circuit court.

The point principally pressed by counsel here is, that the arrangement between Brown and his wife was invalid, because of § 2294 of the code, hereinbefore set out, and it is urged that there could be no estoppel, even if the things testified to by Brown were true, because Ainsworth gave no new consideration for the security he got, which was given to secure the payment of a pre-existing debt.

do not think the agreement between the husband and wife falls within the condemnation of § 2294 of the code. There was no transfer or conveyance of goods and chattels or lands between husband and wife, within the meaning of this section of the code. Its purpose is to invalidate transfers and conveyances between husband and wife of property which is claimed by creditors or others to be that of the spouse, who, but for the transfer or conveyance, would be the owner. Section 2293 (a part of the same chapter) deals with the subject of renting and hiring of lands and personalty when ’ the ownership of the business transacted and the profits and liabilities thereof, instead of the ownership of the property by which the business is transacted, is involved.

Nothing but the written recorded contract can be relied on in the class of cases referred to in § 2294. But, by express provision of § 2293, the renting of land and hiring of personalty is declared invalid “as to all persons dealing with him without notice, unless the contract between the husband and wife which changes this relation be evidenced by writing, subscribed by them, duly acknowledged, and filed with the chancery clerk of the county where such business may be done, to be recorded as other instruments.” One section of the code, as to the contracts to which it relates, declares that nothing but the written recorded contract shall avail; the other, as to those to which it refers, declares them invalid unless written and recorded, except as to persons with notice. The result is, that in contracts of the one class persons with notice are bound by the contract between the husband and the wife. In this class of cases the doctrine of estoppel has no application, but notice alone is sufficient to bind all persons dealing with one spouse in adverse interest to tha,t of the other. If, therefore, Davis, Ellis & Co., at the time they took their deed of trust from Brown, had notice of the right of the'wife, they are bound, not by estoppel, but because no interest in the wife’s crop could pass by the deed of the husband.

The court properly refused to grant a new trial on the ground of surprise. The witness, Brown, was not asked to explain why he had not delivered the same evidence before the magistrate as before the circuit court, and no attempt was made to impeach him by proof that he had not. Mr. Davis says he only heard of the facts relied on when the case was called. ’ ’ No explanation is given why he did not, on the trial, appear and contradict the witness, as he should have done.

Affirmed.  