Bird v. Kitchens

• Court: Arkansas Supreme Court
• Writing for the Court: Holt J.
• Citation: Bird v. Kitchens, 221 S.W.2d 795, 215 Ark. 609 (Ark. 1949)
• Decision Date: 16 May 1949
• Docket Number: 4-8839
• Parties: Bird v. Kitchens

221 S.W.2d 795

215 Ark. 609

Bird v. Kitchens

No. 4-8839

Supreme Court of Arkansas

May 16, 1949

Rehearing Denied June 27, 1949.

Appeal from Columbia Chancery Court, First Division; G. R. Haynie Chancellor.

Reversed.

Keith & Clegg and Gaughan, McClellan & Gaughan, for appellant.

Hampton Kitchens and Wilson & Kimpel, for appellee.

Holt J. Ed. F. McFaddin, Justice, concurring. Griffin Smith, Chief Justice, dissenting in part.

OPINION

Holt J.

February 14, 1933, R. S. Warnock secured a judgment in the Columbia Circuit Court for $ 9,945.60 against Wade Kitchens and J. B. Wilson on a joint note, signed by each, the judgment being against them as individuals.

November 10, 1933, Warnock died and his son, R. S. Warnock, Jr., was appointed administrator of his estate.

On June 2, 1936, after the lapse of more than three years, execution was issued on the judgment against Kitchens and Wilson, advertising for sale a number of tracts of land, some of which belonged to Kitchens individually, some to Wilson individually, some to them jointly, and some few tracts that neither owned were erroneously included. All the lands included in the sale in which either Kitchens or Wilson had an interest were mortgaged. The lien of the judgment had expired February 14, 1936.

For the purpose of the sale, the lands were grouped and sold by the Sheriff in four different lots. Alvin Rogers was the successful buyer, paying $ 500 for one lot, $ 1,000 for another, $ 1,250 for another and $ 2,000 for the other, or a total of $ 4,750. These sales began before three p. m. and concluded shortly after that hour. The sales did not divest Kitchen's wife of her dower interest.

Kitchens knew about the sale, but was not present in person. He, however, sent his secretary, Miss Stevens, to make notes on the sale and to report proceedings to him.

For some time prior to the sale Wilson and Kitchens had become estranged and were not on speaking terms, but Wilson, through emissaries, had contacted Kitchens in an effort to save their property from being sold. Kitchens refused to negotiate or take any part in the matter.

In the forenoon on the day of the sale, Wilson entered into an agreement with the administrator, Warnock, to purchase the judgment. In effect, this agreement provided that Wilson might acquire the judgment at a discount, for $ 9,500, on condition, however, that the judgment in so far as it effected Wade Kitchens, should be assigned to a nominee of Wilson. Accordingly, Wilson paid the administrator $ 2,500 in cash, the balance to be paid in 15 days in settlement of the judgment. The Administrator, Warnock, agreed to instruct the sheriff to sell, under the execution, only lands, levied upon, belonging to Kitchens. The sheriff carried out these instructions in accordance with the agreement and sold only the Kitchens' lands, for a total of $ 4,750, the amount Kitchens owed as his part of the judgment. As above noted, Wilson had paid $ 2,500 and was personally liable for the remainder of the $ 9,500. On this balance due, Wilson would owe as his part $ 2,250, the difference between $ 4,750 and $ 2,500. Shepp Beene advanced to Wilson $ 5,000 and as security took an assignment of the judgment. Wilson secured $ 2,000 additional from another source and paid off the judgment. Thereafter, April 1, 1937, Beene assigned the judgment in question to J. B. Wilson.

It is undisputed that Kitchens did not redeem the lands which had been sold under the execution within the year allowed by statute for redemption, (Ark. Stat., 1947, § 30-441).

After the redemption period of one year had expired, the sheriff executed four separate deeds dated August 12, 1937, to Alvin Rogers, which deeds corresponded, as to lands described and amounts paid, to the four certificates of purchase. Thereafter, August 28, 1937, Alvin Rogers and wife, by quitclaim deed, conveyed the lands so conveyed to him at the execution sale, to J. B. Wilson.

The present suit was filed January 13, 1938, by Kitchens against Wilson to cancel the deeds executed, in connection with the execution sale, by the sheriff to Rogers, and the deed from Rogers and wife to Wilson.

Appellee alleged that the execution sale was void primarily because (1) at the time of the sale, Wilson and Kitchens were partners, the judgment represented a partnership debt, the lands sold on execution were partnership lands, and that one partner could not purchase the lands of the other at such sale; (2) that the sale was also void because made after three o'clock in the afternoon; (3) the lands were sold in lots including separate tracts; (4) lands were included in the sale which did not belong to Kitchens or Wilson; (5) that there were certain erroneous descriptions; (6) the sheriff failed to make proper return of the execution; (7) the sheriff failed to file copies of the certificates of the purchase in the office of the clerk, and (8) that a trust relationship existed between the parties and for fraud on the part of Wilson. Appellee also asked for an accounting.

Defendant, Wilson, interposed a general denial, and specifically denied that a partnership relationship or a trust or fiduciary relationship existed; denied that he, Wilson, was guilty of any fraud, alleged that the execution sale was valid, and asked that appellee's complaint be dismissed for want of equity and that his, Wilson's, title to all lands embraced in the sheriff's deeds, and the deed from Alvin Rogers to him, Wilson, be quieted against any claims of appellee.

The trial court found, in effect, that a partnership relation existed between Kitchens and Wilson which had never been dissolved, that the execution sale was ineffective and should be cancelled in so far as the rights of Kitchens were concerned, because of such relationship. No specific finding was made by the court whether the sale was ineffective or void for any of the other reasons, supra, alleged and assigned by appellee.

The court further found that Kitchens and Wilson had from time to time engaged in other partnership enterprises, that all lands and other partnership assets should be converted into partnership property and that a Master should be appointed to make an accounting, and entered a decree accordingly.

This appeal followed.

Appellant, Mrs. Mary Bird, a daughter of J. B. Wilson, was made a party defendant by appellee. Reference will presently be made as to her connection with the case.

We first determine whether there existed a partnership or trust relation between Kitchens and Wilson in the lands sold at the execution sale and whether Wilson practiced a fraud on Kitchens, in the circumstances.

We have concluded, after considering the entire record, that the preponderance of the testimony shows that no partnership or trust relationship was established or existed, that no fraud was shown on the part of Wilson, and that the findings of the court to the contrary were against the preponderance of the testimony. The facts reveal that Kitchens and Wilson, for a great many years prior to about 1931, had been engaged in a number of separate joint enterprises or adventures for profit, such as purchasing lands, buying cotton and borrowing money. Each also, during this time, carried on separate undertakings and enterprises of his own without including or consulting the other.

Kitchens was a prominent attorney and also Member of Congress for a number of years. His own testimony on this relationship is most significant. He testified that he practiced law as a profession, that he had lands and other property in which Wilson had no interest, that he made deals of his own for profit and sums up their relationship in his answer to the following question: "Q. As a matter of fact each trade that was made was either put up to him by you, or by him to you, and you could come in on it or stay out, couldn't you? A. Well, I suppose so."

We hold, therefore, that they were not partners, but were dealing at arms length with a joint obligation at the time of this execution, in the circumstances, and no fiduciary relationship existed between them.

While as indicated, since three years had elapsed after the entry of the judgment in question, the judgment lien had expired, (Ark. Stat. 1947, § 29-131). However, while the judgment lien expires at the end of this three year period, unless revived, the judgment itself remains in full force and effect for ten years, and the execution may be issued at any time within this ten year period, (Ark....