Clark Shoe Co. v. Edwards

CourtSupreme Court of Arkansas
Writing for the CourtBATTLE, J.
Citation21 S.W. 477,57 Ark. 331
PartiesCLARK SHOE CO. v. EDWARDS
Decision Date25 February 1893

21 S.W. 477

57 Ark. 331

CLARK SHOE CO.
v.
EDWARDS

Supreme Court of Arkansas

February 25, 1893


Appeal from Ouachita Circuit Court, CHARLES W. SMITH, Judge.

Judgment affirmed.

T. W. Hardy and Sanders & Watkins for appellant.

Where a failing debtor makes an assignment purporting to convey all his property for the benefit of creditors, but intentionally withholds a valuable part, the assignment is fraudulent and void. 46 Ark. 405; 54 id. 128; 53 id. 86. The court erred in modifying the instructions by striking out the word "valuable" and inserting "material."

Thornton & Smead for appellees.

The unintentional omission of assets by accident or oversight does not invalidate an assignment. 85 N.Y. 469. In 46 Ark. 405, the withholding was intentional. The fraud must be in the assignment itself, and not in some act before or after the assignment. Wait, Fr. Conv. sec. 320; 18 Ark. 124; 54 id. 128. But Edwards was entitled to $ 500 exemptions, and only claimed $ 41. He was entitled to the additional items, and even if he intentionally withheld them, his creditors cannot complain as they were not subject to his debts.

2. This court in 54 Ark. 128 approved an instruction in which the word "material" was used in the same sense that it is used in the instructions in this case.

Harvey & Hill for appellees.

53 Ark. 87 simply holds that the withholding must be intentional, as was also held in 46 id. 410. In 54 Ark. 128 the court held that the intentional withholding of an immaterial portion of the property does not vitiate the assignment. No acts subsequent to the assignment vitiate it. 88 Penn. St. 167; Burrill on Assignments, sec. 361; 68 Wis. 442; 54 Ark. 126.

OPINION

[57 Ark. 332] BATTLE, J.

During the year 1890 M. L. Edwards and T. J. Edwards did a [21 S.W. 478] mercantile business in Stephens, in this State, under the firm name and style of M. L. Edwards & Co. On the 15th of October, 1890, T. J. sold his interest in the property of the firm to M. L. Edwards, and M. L. assumed and agreed to pay the indebtedness of the partnership, and continued the business until the second of January, 1891, when he discovered that he was unable to pay his debts. On that day or the next he conveyed by deed to D. Newton, in trust for the payment of his creditors, assets which he represented therein to be all his property, except his homestead and personal property of the value of $ 41. On the 14th of the same month the Clark Shoe Company...

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4 practice notes
  • Baxter County Bank v. Copeland, 158
    • United States
    • Supreme Court of Arkansas
    • October 12, 1914
    ...Court dismissing the complaint as to the town lots, was correct, because as to exempt property there can be no creditors. 54 Ark. 193; 57 Ark. 331; 60 Ark. 1; 52 Ark. 547; 59 Ark. Ark. 503. 3. Appellant obtained the judgment against Copeland on the notes sued on, to which it was entitled. I......
  • Lazarus v. Camden National Bank
    • United States
    • Supreme Court of Arkansas
    • October 16, 1897
    ...24 Me. 448; Burrill, Assignments, p. 98); (3) appellants both withheld valuable personal property (53 Ark. 81; 54 Ark. 418; 46 Ark. 405; 57 Ark. 331); (4) the transfer of the homestead of John Lazarus to his son, Abraham Lazarus, was fraudulent and void (53 Ark. 81; 54 Ark. 418; 46 Ark. 405......
  • Baxter County Bank v. Copeland, (No. 158.)
    • United States
    • Supreme Court of Arkansas
    • October 12, 1914
    ...Copeland could not subject such property to the payment of their debts. See Sims v. Phillips, 54 Ark. 193, 15 S. W. 461; Clark v. Edwards, 57 Ark. 331, 21 S. W. 477; King v. Hargadine Co., 60 Ark. 1, 28 S. W. The chancery court did not err, therefore, in holding that the title to the lots i......
  • Gibson v. Barrett
    • United States
    • Supreme Court of Arkansas
    • April 29, 1905
    ...Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241; Blythe v. Jett, 52 Ark. 547, 13 S. W. 137; Clark Shoe Co. v. Edwards, 57 Ark. 331, 21 S. W. 477; Gray v. Patterson, 65 Ark. 373, 46 S. W. 730, 1119, 67 Am. St. Rep. 937; Kennedy v. First Nat. Bank of Tennessee (Ala.) 18 Sou......
4 cases
  • Baxter County Bank v. Copeland, 158
    • United States
    • Supreme Court of Arkansas
    • October 12, 1914
    ...Court dismissing the complaint as to the town lots, was correct, because as to exempt property there can be no creditors. 54 Ark. 193; 57 Ark. 331; 60 Ark. 1; 52 Ark. 547; 59 Ark. Ark. 503. 3. Appellant obtained the judgment against Copeland on the notes sued on, to which it was entitled. I......
  • Lazarus v. Camden National Bank
    • United States
    • Supreme Court of Arkansas
    • October 16, 1897
    ...24 Me. 448; Burrill, Assignments, p. 98); (3) appellants both withheld valuable personal property (53 Ark. 81; 54 Ark. 418; 46 Ark. 405; 57 Ark. 331); (4) the transfer of the homestead of John Lazarus to his son, Abraham Lazarus, was fraudulent and void (53 Ark. 81; 54 Ark. 418; 46 Ark. 405......
  • Baxter County Bank v. Copeland, (No. 158.)
    • United States
    • Supreme Court of Arkansas
    • October 12, 1914
    ...Copeland could not subject such property to the payment of their debts. See Sims v. Phillips, 54 Ark. 193, 15 S. W. 461; Clark v. Edwards, 57 Ark. 331, 21 S. W. 477; King v. Hargadine Co., 60 Ark. 1, 28 S. W. The chancery court did not err, therefore, in holding that the title to the lots i......
  • Gibson v. Barrett
    • United States
    • Supreme Court of Arkansas
    • April 29, 1905
    ...Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241; Blythe v. Jett, 52 Ark. 547, 13 S. W. 137; Clark Shoe Co. v. Edwards, 57 Ark. 331, 21 S. W. 477; Gray v. Patterson, 65 Ark. 373, 46 S. W. 730, 1119, 67 Am. St. Rep. 937; Kennedy v. First Nat. Bank of Tennessee (Ala.) 18 Sou......

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