Baker v. Baer

• Decision Date: 27 October 1894
• Citation: 28 S.W. 28,59 Ark. 503
• Parties: BAKER v. BAER
• Court: Arkansas Supreme Court

28 S.W. 28

59 Ark. 503

BAKER v. BAER

Supreme Court of Arkansas

October 27, 1894

Appeal from Sharp Circuit Court, JOHN B. MCCALEB, Judge.

STATEMENT BY THE COURT.

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 follows 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 & Company sued S. L. Guthrie, W. G. and John W. Hastings, under the firm name of S. L. Guthrie & Company, for the sum of six hundred and fifty-nine dollars. 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.

Judgment reversed and cause remanded.

Rose, Hemingway & Rose and R. H. Powell for appellant.

1. An assignment cannot be vitiated by matters ex post facto. If the assignee misdemeans himself, it is a cause for removal but does not impair the validity of the conveyance. 18 Ark. 124; Id. 172; 54 id. 124; 53 id. 88.

2. The sixth instruction was abstract. There was no evidence of a partnership. 8 Ark. 183; 16 id. 651; 42 id. 58. Guthrie owned all the property assigned. 17 A. & E. Enc. Law, 1046; 6 Lea, 119.

3. The seventh and eighth instructions were erroneous. There was no foundation for them. Guthrie reserved nothing. He conveyed all to the assignee, reserving only his exemptions. Even if the assignment and clause of exemptions be construed as one instrument, the exemption would only be an exception from the grant, and make it a partial assignment, which is good in the absence of insolvency laws. Burrill, Assignments, sec. 155; Bump, Fr. Conv. 369; Burrill, Ass. sec. 187; 35 N.W. 47; 69 Wis. 561; 13 S. & M. 22; 19 N.Y. 520; 22 Tex. 709; 49 Pa.St. 465; 36 id. 258; 61 Wis. 293, Id. 335; 21 Kas. 707.

4. Independent frauds of the grantor will not vitiate a conveyance. To have that effect they must enter into it and form a part of it. 10 S.W. 824; 16 N.E. 912; 39 N.W. 660; 70 Wis. 272; 4 U. S. Ap. 69; 122 U.S. 450.

Yancey & Fulkerson and Morris M. Cohn for appellees.

1. There may be errors in the instructions, but they are not prejudicial. The facts are undisputed, and the verdict could not have been different if the jury had been correctly instructed. 54 Ark. 289, 303; Mansf. Dig. sec. 5083.

2. Guthrie undertook to exempt from the assignment certain real estate as his homestead, which was not his homestead. He had never lived on it, or used it as a homestead. This reservation avoided the assignment. 31 Ark. 466; 29 id. 289; 23 Iowa 210; 1 Iowa 435; 11 Allen, 38; 46 Ark. 405; 53 id. 81-86; 85 N.Y. 464; 59 Miss. 69; 19 P. 346; 8 Kas. 574; 5 Kas. 324; 54 Ark. 418.

3. One partner has only the right to assign partnership assets to a trustee for the benefit of creditors, without preferences, in the name of the firm, where the other partners have invested him with the power to do so. 37 Ark. 228; 40 id. 551; 52 id. 556; 17 Vt. 390; 1 Harr. 172; 13 Minn. 412; 30 N.Y. 344; Burrill, Ass. (3 ed.) sec. 86; 1 Bates, Part. secs. 338, 403-4-5; 36 Ark. 612.

4. The ninth instruction is sustained by 53 Ark. 88; 22 S.W. 342; 13 id. 515.

5. It was not error to admit the statement of S. L. Guthrie & Co. It tended to prove the partnership, and fraud. 43 Mich. 454. The intent of the assignors was the sole criterion at the time of the assignment. Acts 1887, p. 194; 51 Ark. 56; 50 id. 314. Their representations, upon which appellees acted, operated as an estoppel. 48 N.W. 771; 55 Ark. 296; 54 Miss. 308; 41 Miss. 64.

OPINION

WOOD, J., (after stating the facts.)

1. 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 Gnthrie 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 would not invalidate the assignment. German Bank v. Peterson, 69 Wis. 561, 35 N.W. 47; Ingraham v. Grigg, 21 Miss. 22, 13 S. & M. 22; Carpenter v. Underwood, 19 N.Y. 520; Baldwin v. Peet, 22 Tex. 708; Heckman v. Messinger, 49 Pa. 465; Knight v. Waterman, 36 Pa. 258; Goll v. Hubbell, 61 Wis. 293; First Nat. Bank v. Hackett, 61 Wis. 335; 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 the property until after he had filed his bond and inventory. He brought replevin for some mortgaged property, but did it because he apprehended the mortgagor was about to make way with it. Never got possession of it. He assisted the assignor, at his request, in making his inventory attached to the deed, and copied from it. Knowing that said inventory was correct, he advertised the property for sale after he had filed his bond, and while he was making the inventory. The assignor testified that the assignee made and filed his bond as...