Blythe v. Jett

• Decision Date: 22 February 1890
• Citation: 13 S.W. 137
• Parties: BLYTHE <I>v.</I> JETT, Sheriff.
• Court: Arkansas Supreme Court

13 S.W. 137

BLYTHE

v. JETT, Sheriff.

Supreme Court of Arkansas.

February 22, 1890.

Appeal from circuit court, Johnson county; GEORGE S. CUNNINGHAM, Judge.

This was an action of replevin, brought by L. R. Blythe against W. S. Jett, as sheriff. There was judgment for defendant, and plaintiff appealed.

A. S. McKinnon, for appellant. W. S. Jett, pro se.

HUGHES, J.

Appellant purchased of Mrs. O. J. Harris, a married woman, doing business as a merchant in Clarksville, Johnson county, Ark., the property in controversy in the suit. Mrs. Harris being indebted and insolvent at the date of the sale, an execution was levied by the appellee, as sheriff of Johnson county, upon the property, to recover which, Mrs. Blythe, the appellant, brought an action of replevin before a justice of the peace, and recovered judgment, from which appellee appealed to the circuit court, where judgment was rendered in his favor, from which appellant appealed to this court. No instructions appear in the record. Appellant's motion for a new trial in the circuit court was upon the grounds that the verdict was contrary to the law; that the verdict was contrary to the evidence. Appellee, in his answer to the complaint of appellant, states that the sale by Mrs. Harris to appellant was made for the purpose of hindering and delaying the creditors of the said Mrs. O. J. Harris. Appellant contends that the property was exempt from execution for Mrs. Harris' debts before the sale, and that, as the execution creditors could not have taken it while owned by her, it is exempt in the hands of her vendee; that the burden of proof was upon the execution creditors to show that the property was subject to execution before the sale. There was evidence tending to show that the property of Mrs. Harris, at the date of the sale, was near $600 in value; and, upon the other side, the evidence tended to show that its value was less than $500. It appeared that she owed $221.66, and that she reserved from sale $125 worth of her property; that the appellee purchased the property in controversy through J. N. Brown, acting under the employment and direction of her husband and general agent, E. D. W. Blythe, for $273.66; that Brown, at the time of the purchase, knew of Mrs. Harris' embarrassed financial condition, and that E. D. W. Blythe knew that R. C. Redding had been employed to recover the goods for Mrs. Harris' creditors, from E. D. W. Blythe, who had levied an execution upon them. There was testimony upon which the jury might have found the sale by Mrs. Harris to be fraudulent. Notice to appellant's agent was notice to her. There was no evidence that Mrs. Harris was a resident of the state at the date of the sale. Therefore, under the proof in the case, had she not sold the property, the claim that it was exempt from execution could not have been maintained by Mrs. Harris herself, as only a resident of the state can claim the exemption. Guise v. State, 41 Ark. 249.

It is settled in the decisions of this court that, as to property exempt from execution, there are no creditors; that, as they cannot sell it under execution, they are not injured by a sale of it by the owner, and are not concerned with the motives which may prompt the sale. Clark v. Anthony, 31 Ark. 546; Erb v. Cole, Id. 557; Stanley v. Snyder, 43 Ark, 434; Bogan v. Cleveland, 12 S. W. Rep. 159, (Oct. 12, 1889.) When property seized under an execution is claimed as exempt, upon whom does the burden of proof rest? In Erb v. Cole, 31 Ark. 554, this court decided that it is incumbent on a party who attacks a sale on the ground that it was made to hinder, delay, or defraud creditors, "to show that if it had not been made the goods would have been...