Breathwit v. Bank of Fordyce
| Decision Date | 08 December 1894 |
| Citation | 28 S.W. 511 |
| Parties | BREATHWIT et al. v. BANK OF FORDYCE. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Cleveland county; Carroll D. Wood, Judge.
Action by the Bank of Fordyce against J. L. & J. R. Breathwit, commenced by attachment. Hill, Fontaine & Co. and others became parties as claimants of the attached property. Judgment for plaintiff. Defendants and claimants appeal. Reversed in part.
Met. S. Jones, Chas. T. Coleman, W. T. Woolridge, and Sterling R. Cockrill, for appellants. W. P. & A. B. Grace, W. S. McCain, J. M. & J. G. Taylor, and D. H. Rousseau, for appellee.
On the 20th of October, 1890, J. L. & J. R. Breathwit were partners doing business at Kingsland, in this state. They were insolvent, and many of their creditors were urging them to pay their claims. They endeavored to get time, but failing in this, in order to secure the debts owing by them (J. L. & J. R. Breathwit) to H. C. Draughn & Co., J. W. Doster, M. D. Wells & Co., Hill, Fontaine & Co., William Breathwit, and the Bank of Little Rock, executed a mortgage, and thereby conveyed to the creditors named certain personal property and real estate, on condition that the mortgage should be void when the debts therein described were fully paid. These debts were evidenced by promissory notes, and were owing by the mortgagors to the following creditors, on notes due, and for amounts, as follows, to wit:
Hill, Fontaine & Co., note due October
15, 1890............................. $1,000 00
H. C. Draughn & Co., note due October
29, 1890............................. 800 00
J. W. Doster, note due September 15
1890 ................................ 600 00
M. D. Wells & Co., note due December
2, 1890.............................. 711 38
William Breathwit, note due January
1, 1889.............................. 5,000 00
William Breathwit, note due April
24, 1889 ............................ 4,874 15
William Breathwit, note due October
1, 1890.............................. 3,000 00
Bank of Little Rock, note due November
12, 1890............................. 1,000 00
Bank of Little Rock, note due November
12, 1890............................. 1,200 00
The mortgage was executed on the 20th of October, 1890, and was acknowledged and filed for record on the same day. On the 24th day of the same month, four days thereafter, the Bank of Fordyce instituted an action in the Cleveland circuit court against J. L. & J. R. Breathwit on a promissory note executed by them to the bank for $933.48, and sued out an order of attachment on the ground that the defendants had conveyed their property with the fraudulent intent to cheat, hinder, and delay their creditors, and caused the sheriff to seize the property conveyed by the mortgage, in order to satisfy the same. On the 24th of July, 1891, Hill, Fontaine & Co., H. C. Draughn & Co., J. W. Doster, M. D. Wells & Co., S. S. Dykes, and William Breathwit filed a complaint in this action, and therein claimed the property seized by the sheriff, and set out the mortgage as the evidence of their claim.
On the 30th of July, 1891, the plaintiff filed a motion for a change of venue, which was granted, and the venue in the case was changed to the Drew circuit court. On the 8th of August, 1891, the transcript of the proceedings in the Cleveland circuit court, together with the original papers in the cause, was duly certified and filed in the Drew circuit court. On the 22d of September, 1891, the parties appeared in the last-named court, and the plaintiff filed its answer to the complaint of the claimants, admitting that the defendants executed the instrument relied on by the claimants, "but denying that it was ever intended to be a mortgage, or that it was ever delivered to the claimants, or to any one for them who was authorized or empowered to receive the same, or that the claimants ever received or acquired possession of the property described therein prior to the attachment." Plaintiff also alleged in its answer that the instrument relied on by the claimants was a general assignment for the benefit of creditors, and was fraudulent and void because it provides that the assignees should take possession of the property without executing a bond or filing an inventory as required by the statute, and denied that the defendants J. L. & J. R. Breathwit were at the time of the execution of the instrument indebted to William Breathwit, or were at the time of the filing of their answer indebted to M. D. Wells & Co., and alleged that the instrument was executed with the intent to cheat, hinder, and delay creditors. On the same day, and upon motion of the defendants, and with the consent of all parties, the Drew circuit court remanded the cause to the Cleveland circuit court for trial.
All the issues were submitted by the parties, for trial, to the court sitting as a jury. The instrument being unquestionably a mortgage, and M. D. Wells & Co. and the Bank of Little Rock having refused to accept it, there were only three issues to be tried: First. Did J. L. & J. R. Breathwit execute the mortgage with the intent to cheat, hinder, and delay their creditors? Second. Was the debt to William Breathwit, secured thereby, real or simulated? Third. Was the mortgage delivered to and accepted by the mortgagees, — that is to say, Hill, Fontaine & Co., H. C. Draughn & Co., J. W. Doster, and William Breathwit?
It would serve no useful purpose to set out at length, in this opinion, the evidence adduced at the trial. It is sufficient to say that it tended to prove that the mortgage was executed by J. L. & J. R. Breathwit with the intent to cheat, hinder, and delay their creditors, and that William Breathwit let them have large sums of money with no intent to demand the return of it, but gave it to them, and that no debt was thereby created, and that the undisputed evidence shows that the mortgage was delivered by the mortgagors to H. C. Draughn on the day it was signed, and at the time when their creditors were pressing them for payment, with the request that he file it for record, which he did on the 20th of October, 1890, four days before the attachment, and that they at once notified the mortgagees, who were present, of its execution, and sent information of that fact, by telegram, to the others. We have failed to discover any evidence that tended to show that Hill, Fontaine & Co. or J. W. Doster did or did not expressly accept the mortgage.
In the course of the trial, witnesses were allowed to testify, over the objections of William Breathwit, in effect, that he, a short time before the mortgage was executed, said that J. L. & J. R. Breathwit, who were his children, owed him nothing, and that the moneys which he let them have were given to them. To the admission of this testimony, William Breathwit, at the time, excepted.
Among the numerous declarations of law made, the court declared the law, over the objections of the claimants, to be as follows:
And the court found the facts as follows:
First. That the evidence sustained the attachment as to the defendants.
Second. That the instrument upon which the claimants rely is a mortgage, and not an assignment.
Third. That H. C. Draughn and William Breathwit accepted the mortgage, and that the other mortgagees did not accept before the order of attachment was issued.
And Fourth. That the amounts claimed by William Breathwit, and secured by the mortgage, were gifts or advancements to his children, J. L. and J. R. Breathwit.
Judgment was rendered accordingly, and the defendants and the claimants, William Breathwit, Hill, Fontaine & Co., J. W. Doster, after filing motions for new trial, which were overruled, and saving exceptions, appealed.
Appellants present six questions for our consideration and decision:
First. Did the Cleveland circuit court, after the transfer to the Drew circuit court, have jurisdiction?
Second. Was the testimony admitted by the court over the objections of William Breathwit competent?
Third. Should the judgment sustaining the attachment be reversed because the court erred in finding that the mortgage was executed by J. L. & J. R. Breathwit with the intent to cheat, hinder, and delay creditors?
Fourth. Should the judgment, as to the claim of William Breathwit, be set aside because the court erred in finding that J. L. & J. R. Breathwit owed him nothing when the mortgage was executed?
Fifth. Did the court err in making the declaration of law set out in this opinion?
Sixth. Did it err in finding that Hill, Fontaine & Co. and J. W. Doster did not accept the mortgage before the attachment?
1. When the Drew circuit court remanded this cause to the Cleveland circuit court, it virtually dismissed the action from that court; and, when all the parties appeared in the Cleveland circuit court, they adopted all the pleadings on file before it was remanded, and entered their appearance, and thereby gave to the latter the same jurisdiction it would have acquired had the action been dismissed by the former court, and again brought in the latter. It is unlike the case of Frazier v. Fortenberry, 4 Ark. 162, cited by the appellants. In that case the suit was instituted in the Independence circuit court, and the cause was afterwards removed to the Van Buren circuit court. While it was pending in the Van Buren court the parties appeared in the Independence court, and the action was disposed of in that court. The court said: ...
To continue reading
Request your trial