Dennis v. Ball-Warren Commission Co

• Decision Date: 12 December 1903
• Citation: 77 S.W. 903,72 Ark. 58
• Parties: DENNIS v. BALL-WARREN COMMISSION CO
• Court: Arkansas Supreme Court

77 S.W. 903

72 Ark. 58

DENNIS v. BALL-WARREN COMMISSION CO

Supreme Court of Arkansas

December 12, 1903

Appeal from Columbia Circuit Court in Chancery CHARLES W. SMITH Judge.

Affirmed.

STATEMENT BY THE COURT.

Appellee filed its complaint in the Columbia circuit court, against A J. Dennis, J. M. Dennis and D. J. Dennis, alleging that on the 23d day of October, 1893, the defendant, A. J. Dennis executed a deed to lot 73, block 1, in the town of Magnolia Arkansas to his co-defendant, J. M. Dennis, for the consideration of $ 850, and that on November 28, 1894, he executed a deed to lot 3, block A, in same place, to D. J Dennis, and that on the 14th day of September, 1893, he purchased another piece of land, and had title made to same by his wife, Beatrice. It charges that these conveyances were all made to delay and defraud the creditors of A. J. Dennis in the collection of their debts, and that the grantees agreed to hold the property secretly for the benefit of A. J. Dennis; that it had obtained judgment against A. J. Dennis, and had execution issued, and that same had been returned nulla bona, and that he had no other property out of which to make this debt; and praying a cancellation of the deeds.

Defendants answered, admitting the execution of the deeds, and the judgments, execution and return, but denying that, at the time of the execution of the deed to J. M. Dennis on October 23, 1893, the property conveyed embraced all of his property subject to execution, or that the conveyances were made to delay or hinder appellee in the collection of its debts, or that the grantees agreed to hold the property for the benefit of A. J. Dennis. They state that, at the time of the transfer to J. M. Dennis by A. J. Dennis, the latter was solvent, and doing a mercantile business in the town of Magnolia; that the consideration expressed therein of $ 850 was paid to A. J. by J. M. Dennis, and that the sale was absolute and unconditional, and the deed was placed on record at the time of its execution; that A. J. Dennis was the head of a family, and that the property conveyed to D. J. Dennis was his homestead.

Plaintiff afterwards filed an amendment to its complaint, in which it set out more definitely the purchase of the land by A. J. Dennis, and the execution of the deed to his wife, Beatrice. To this, defendant A. J. Dennis filed an answer in which he says that the money used in the purchase of this land was not taken out of his mercantile business, but was derived from the sale of some bank stock; denied all fraud in the transaction; and alleged that the money used in buying this land, together with all of his household goods, was less than $ 520, and that all of his other personal property had been turned over to plaintiffs.

Beatrice Dennis, one of the grantees, having died leaving an infant child, there was a guardian ad litem appointed, who filed an answer denying each and every allegation in the complaint.

All the parties being in court and having fully answered, the court found upon the evidence that the conveyance by A. J. Dennis to J. M. Dennis of lot 73 in block 1 of said town of Magnolia was void; that it was made with the intent to hinder, delay and defraud plaintiff and other creditors of defendant; that at the date of said deed the defendant A. J. Dennis was insolvent, and that a material part of the indebtedness due by the defendant A. J. Dennis to the plaintiff had been contracted prior to the execution of said deed, and that said deed conveyed no title to the defendant,

J. M. Dennis, all of which J. M. Dennis had full notice at the time of receiving same, and that the same was null and void as to plaintiff. The court also found that the conveyance of part of the southwest quarter of the northeast quarter of section 12, township 17 south, range 21 west, to Mrs. Beatrice Dennis was procured to be made by her said husband, A. J. Dennis, who had bought the same with his means, and that Beatrice Dennis paid no part of the purchase price thereof, and that a material part of the debt due by defendant to the plaintiff was contracted before said conveyance to the said Beatrice Dennis, and that she held the same in trust for said A. J. Dennis; that the aforesaid lot 73 and said piece of land in section 12 were subject to the lien of plaintiff's judgment. A sale of the same for the satisfaction of such judgment was decreed. The court also found that lot 3 in block A of the town of Magnolia was the homestead of A. J. Dennis at the time he conveyed the same to D. J. Dennis, and that there was no fraud on his creditors in the conveyance of the same; it not being subject to the debts of A. J. Dennis. To which judgment and decree the defendants excepted, and appealed to this court.

Affirmed.

Smead & Powell and Thornton & Thornton, for appellants.

Fraud will not be presumed, but must be clearly shown. 1 Story, Eq § 190; 31 Ark. 556; 9 Ark. 482; Roberts, Fraud. ...