Catchings v. Harcrow

• Decision Date: 02 April 1887
• Citation: 3 S.W. 884,49 Ark. 20
• Parties: CATCHINGS v. HARCROW
• Court: Arkansas Supreme Court

3 S.W. 884

49 Ark. 20

CATCHINGS v. HARCROW

Supreme Court of Arkansas

April 2, 1887

APPEAL from Drew Circuit Court, in Chancery, J. M. BRADLEY, Judge.

Decree reversed and cause remanded.

McCain & Crawford for appellant.

1. The act (Mansf. Digest, secs. 4125-6) providing for levying attachments from justices' courts on land was held constitutional in Rush v. Visart, 42 Ark.

2. Even if appellant's remedy was at law, it was error to dismiss the bill; but the cause should have been transferred to the proper docket. Mansf. Dig., secs. 4925-9. And if no motion is made to transfer, and no objection is made, the court should try the case on its merits. 31 Ark. 411; 32 Id., 56; R R. v. Perry, 37 Ark.; Conger v. Cotton, 37 id 286. Both courts of law and equity have jurisdiction to set aside deeds for fraud. 24 Ark. 222; 14 id., 79; id., 79; 12 Peters, 11; 10 Ark. 53. As to appellant's right to sue in equity, see 33 Ark. 328, 762.

3. Review the facts, and contend that the deed to Elbert was fraudulent and void as to creditors.

OPINION

SMITH, J.

J. C Harcrow opened a mercantile business in the town of Monticello in the spring of 1880. In August and the fall of the same year he bought goods in Memphis, Louisville and St Louis, to the amount of several thousand dollars, upon a credit. These goods he sold for cash, chiefly in large lots, to other merchants in the same town, and at prices corresponding to the original cost. He paid no debts, and in January, 1881, when he had sold out his stock, had no property in sight, having shortly before sold and conveyed his iron safe, and the house and lot in which he carried on business, to his brother Elbert, for an alleged debt due him.

Catchings & Co., one of his creditors, sued J. C. Harcrow before a justice of the peace, and swore out an attachment, which was levied upon the safe, and also upon the house and lot. The attachment was sustained, and the attached property was condemned to be sold. Elbert brought an action of replevin against the purchasers of the safe; but after a contest before the justice, which was fought over again in the Circuit Court, he was finally defeated. The proceeds of the sale of the safe being insufficient to satisfy their debt. Catchings & Co. filed a transcript of their judgment in the office of the Clerk of the Circuit Court, and upon execution issued thereon purchased the real estate which had been attached for the residue of their debt, $ 180.30. This sale was made for cash, contrary to the statute, and the same not being redeemed within the time prescribed by law, the Sheriff conveyed the premises to them by deed. Entertaining some doubt as to the validity of the sale, and no one being in actual possession, Catchings & Co., now exhibited their bill, assailing the previous conveyance to Elbert Harcrow as a fraudulent contrivance to defeat the creditors of J. C. Harcrow, and alleging that the demand, in satisfaction of which it purported to have been made, was simulated. The two brothers filed a joint answer, claiming that the debt of J. C. to Elbert was just and honest, and that the whole transaction amounted only to a preference of one creditor over another. Proofs were taken, and at the hearing the bill was dismissed.

It is suggested in the brief for appellants that the ground of dismissal was the supposed unconstitutionality of the act of January 23, 1875, allowing attachments issued by a justice of the peace to be levied upon lands. Mansf. Dig., sec. 4125, et seq. But this question was set at rest in Bush v. Visant, 40 Ark. 124. However, the decree will not be disturbed, if it can be sustained on any ground. It may also have been thought that the plaintiffs, having proceeded to a sale and having obtained the Sheriff's deed, their rights were purely legal, and their remedy an action of ejectment. But an error of this sort was no good cause for dismissal, but only for a transfer of the cause to the proper docket. Mansf. Dig., 4925, et seq.; Talbot v. Wilkins, 31 Ark. 411; Moss v. Adams, 32 Ark. 562; L. R. & Ft. S. R. Co. v. Perry, 37 Ark. 164; Conger v. Cotton, 37 Ark. 286.

Courts of equity and of law have jurisdiction to relieve against frauds upon creditors. And where no motion is made to correct an error in the adoption of the proceedings, the court may either transfer upon its own motion, or may proceed to a trial upon the merits.

The testimony leaves no room to doubt that the pretended failure in business of J. C. Harcrow, and everything connected therewith, including the disposal of his property, was a deliberate scheme to avoid the payment of his debts. This however, would not affect Elbert Harcrow, unless he was privy to the design, or assisted in its execution; in other words unless he participated in the fraud. Christian v. Gre...