Campbell v. Jones

• Decision Date: 01 February 1890
• Citation: 12 S.W. 1016
• Parties: CAMPBELL <I>v.</I> JONES <I>et al.</I>
• Court: Arkansas Supreme Court

12 S.W. 1016

CAMPBELL

v. JONES et al.

Supreme Court of Arkansas.

February 1, 1890.

Appeal from circuit court, Arkansas county; JOHN H. WILLIAMS, Judge.

Gibson & Holt, for appellant. W. H. Halliburton, for appellees.

HUGHES, J.

On the 1st day of August, 1885, appellant recovered a judgment against John C. Jones, one of the appellees, and the father of the other appellees, in Desha circuit court, in Arkansas, in the sum of $3,661.93, and on 23d of October, 1885, had an execution issued on said judgment, which, on 23d of December, 1885, was returned unsatisfied. He then filed his bill in equity to set aside as fraudulent, and have declared void as to his debt, certain conveyances of land which John C. Jones had procured to be made to his children by one Talmadge E. Brown. The bill was dismissed, and he appealed. John C. Jones owned, near Des Moines, Iowa, a 40-acre tract of land, which had been set aside to him as a homestead, and which, under the laws of that state, could not be taken in execution for his debts. In November, 1877, John C. Jones exchanged his 40-acre homestead with one Talmadge E. Brown for 1,600 acres of land, in what was then a part of Desha county, in the state of Arkansas, but which was afterwards attached to Arkansas county. He had the deed to the Arkansas lands made to himself, and conveyed his homestead in Iowa to Brown, with an understanding, at the time the conveyances were made, that he would visit Arkansas, examine the lands purchased of Brown, determine how he would divide them between his children, and that he would then cancel and deliver up Brown's deed to him for the lands, and that Brown would thereupon make deeds according to his division of the lands and his directions. He canceled, in writing across its face, Brown's deed to him. He and his wife signed and acknowledged the cancellation, and delivered the deed to Brown, who then made to John C. Jones a deed for 160 acres, and to his children deeds for 1,440 acres of the Arkansas lands. Two of the children were minors. The lands were wild and unimproved. The father, John C. Jones, settled upon and improved, and claims as a homestead, the 160 acres conveyed to him. The only consideration for the conveyances from Brown to John C. Jones and his children for the Arkansas lands was the conveyance by John C., the father, of his homestead in Iowa to said Brown. No consideration moved from the children to the father. At the time John C. Jones made this exchange of lands with Brown there was a subsisting unsatisfied judgment against him in favor of appellant, Campbell, in Iowa, where his homestead was situated, and that judgment was the foundation of the judgment in Desha county, Ark., and was recovered in the supreme court of Iowa on appeal, March 18, 1875. 40 Iowa, 691. No motion was ever made or step taken to set aside, vacate, or modify the judgment recovered in Desha county, Ark., and no good reason is given for the failure by appellee John C. to make such motion, or take such step, and yet he asks to be allowed to attack the judgment collaterally, which it is hardly necessary to say cannot be done.

Appellees insist that the exchange of his homestead in Iowa for the lands in Arkansas was not made to defraud his creditors, but in good faith, and to procure homes for his children; that neither his homestead in Iowa, nor the proceeds of the sale thereof, when sold by him, could have been taken in execution for his debts; that he had a right to reinvest the proceeds of the sale of the same for the benefit of his family, and that the property purchased therewith could not have been taken in execution for his debts; that, his homestead in Iowa being exempt, there were no creditors as to it, and that any disposition he might have made of it would not have been a fraud upon his creditors; that having invested his homestead, thus exempt, in Iowa, in lands in Arkansas for himself and his children, the lands in Arkansas taken in exchange cannot be taken in execution for this debt. It is also contended for appellees that the deed first made by Brown to John C. Jones was an escrow, and that the title to the lands described therein did not pass thereby, nor until the conveyances were made by Brown to him and his children, according to John C. Jones' division of the lands, and after the cancellation of the first deed. But this theory is not supported by the evidence, the preponderance of which, as to this, is that the deed first made by Brown to appellee John C. Jones for all the lands was delivered to him directly. There is no evidence to the contrary.

It is well settled that a voluntary conveyance, made to hinder, delay, or defraud creditors, is void as to them; the grantor being insolvent without the property so conveyed. Bank v. Norwood, 50 Ark. 42, 6 S. W. Rep. 323; Adams v. Edgerton, 48 Ark. 419, 3 S. W. Rep. 628; Hershy v. Latham, 46 Ark. 542; Reeves v. Sherwood, 45 Ark. 520; Danley v. Rector, 10 Ark. 225; Leach v. Fowler, 22 Ark. 145; Bertrand v. Elder, 23 Ark. 494; Massie v. Enyart, 32 Ark. 251; Oliphant v. Hartley, Id. 465; Bennett v. Hutson, 33 Ark. 762, 767. But it is as well settled that it is incumbent on a creditor, who complains of a fraudulent conveyance, to show that his debtor...