Baker v. Baer

• Decision Date: 27 October 1894
• Citation: 28 S.W. 28
• Parties: BAKER v. BAER et al.
• Court: Arkansas Supreme Court

28 S.W. 28

BAKER v. BAER et al.

Supreme Court of Arkansas.

October 27, 1894.

Appeal from circuit court, Sharp county; John B. McCaleb, Judge.

Action by Baer, Seasongood & Co. against Samuel L. Guthrie and others. J. B. Baker, the assignee of defendant Guthrie, interpleaded. Judgment was rendered for plaintiffs, and defendant Baker appeals. Reversed.

On the 11th of January, 1892, S. L. Guthrie made an assignment for the benefit of creditors, with preferences. J. B. Baker, interpleader and appellant, was the assignee. To him was assigned (quoting from the deed), "all and singular, the lands, tenements, hereditaments, and appurtenances, goods, chattels, accounts, promissory notes, debts, choses in action, claims, demands, property, and effects, of every description, belonging to the said party of the first part [the assignor], or in which he has any interest or right, now due or payable or to become due or payable to the party of the first part, except what are exempt to him by the laws of the state of Arkansas, the same being fully and particularly described in a schedule thereof hereto annexed, and marked `Schedule A.' The real estate herein conveyed is all situated and lying in Izard county, state of Arkansas, is more particularly described, however, as follows, to wit." (Then follows a description of the land conveyed, embracing, among others, the land contained in a claim of exemptions attached to the assignment.) The habendum clause contained, inter alia, the following: "To have and to hold the same, and every part and parcel thereof, unto the said party of the second part, his heirs, executors, administrators, and assigns, in trust, nevertheless." (Then follow the purposes of the trust, and directions to assignee.) Attached to the deed of assignment were schedules containing a list of debts secured, and a description of the property conveyed; also, the following "claim of exemptions": "Samuel L. Guthrie, assignor to J. B. Baker of the property and effects, real and personal, which he owns, for the benefit of all his creditors in said assignment and schedule thereto, has included all his property, of every description, reserved from sale, in said assignment, his homestead and exemptions, and now annexes to said assignment this, his schedule of property which he claims as his homestead, and property exempted under the constitution of the state of Arkansas, to wit: The southwest quarter of the southwest quarter and the southeast quarter of the southwest quarter of section twenty-eight, and west half of the northwest quarter of section thirty-three, containing, by estimation, one hundred and sixty acres." Then follows a list of personal property amounting to $448. The deed was properly acknowledged. There is no objection to its form, except that it is verbose and long, and for that reason we have only set out such parts of it as are necessary for the consideration of the issues raised. On the 18th of January, 1892, Baer, Seasongood & Co. sued S. L. Guthrie, W. G. and John W. Hastings, under the firm name of S. L. Guthrie & Co., for the sum of $659. They also caused an attachment to be issued, which was levied by the sheriff upon the property in controversy. The sheriff returned the property as that of S. L. Guthrie & Co. The proceeds of such of the property as was sold under the order of the court was reported to the court. Guthrie alone filed a traverse of the attachment. Judgment was rendered against the defendants, and the attachment sustained. J. B. Baker, the appellant, filed his interplea. That issue was tried by jury, whose verdict was against him, and he appeals.

Rose, Hemingway & Rose and R. H. Powell, for appellant. Yancey & Fulkerson and Morris M. Cohn, for appellees.

WOOD, J. (after stating the facts).

Neither the deed of assignment, nor the claim of exemptions thereto attached, justifies the conclusion that there was a withholding of any real estate by the assignor. The granting clause of the deed is all embracing, as to the earthly possessions of the assignor, "except what are exempt to him by the laws of the state of Arkansas." The lands conveyed were specifically described in the deed and schedule, and the land claimed by the assignor as a homestead was included. The law, upon the evidence of the assignor, determines that the lands claimed as a homestead were never so impressed, and therefore are not exempt. Hence, the title passed absolutely to the assignee. The language of the granting clause is unambiguous, and should be held to mean what it says. Only property "exempt" was reserved. This property was not exempt. Therefore, this property was not reserved. Nothing could be plainer. This is not a case of conveying all in the deed, and at the same time secretly or intentionally withholding a portion for the debtor's benefit. All was conveyed by the definite description, and this, so far as the deed itself, and the claim of exemptions thereto attached, is concerned, argues most strongly the good faith and honesty of the transaction. But, if the land claimed as a homestead was in fact reserved, it would not follow that there was an intentional withholding of valuable assets to defraud creditors. Appellee contends that Guthrie knew, or should have known, that the land claimed was not exempt. Suppose he did. If withheld, it was not exempt from the claims of creditors; and, this being so, the assignor could hardly have adopted a more effectual method of inviting anxious creditors to subject it to their demands. It was "conspicuously pointed out" to creditors in the deed, and is a cogent reason for saying there was no fraudulent withholding. A reservation of the kind mentioned here would not invalidate the assignment. Bank v. Peterson (Wis.) 35 N. W. 47; Ingraham v. Grigg, 13 Smedes & M. 22; Carpenter v. Underwood, 19 N. Y. 520; Baldwin v. Peet, 22 Tex. 709; Heckman v. Messinger, 49 Pa. St. 465; Knight v. Waterman, 36 Pa. St. 258; Goll v. Hubball, 61 Wis. 293, 20 N. W. 674, and 21 N. W. 288; Bank v. Hackett, 61 Wis. 335, 21 N. W. 280; Dodd v. Hills, 21 Kan. 707. The seventh instruction, therefore, which told the jury that the land claimed by Guthrie as a homestead should not have been reserved from the assignment, and such a reservation would render the assignment fraudulent and void, was erroneous and prejudicial. This disposes, also, of the eighth.

2. The third and ninth were likewise erroneous, abstract, and misleading. There was no proof whatever that the assignee took possession of any of the property assigned before filing his inventory and bond. The only proof upon the subject is to the contrary. The assignee testified: That he did not take possession of any of...