Dunbar v. Alphin

• Decision Date: 11 June 1917
• Docket Number: (No. 36.)
• Citation: 196 S.W. 119
• Parties: DUNBAR et al. v. ALPHIN.
• Court: Arkansas Supreme Court

196 S.W. 119

DUNBAR et al. v. ALPHIN.

(No. 36.)

Supreme Court of Arkansas.

June 11, 1917.

Appeal from Union Chancery Court; J. M. Barker, Chancellor.

Action by J. H. Alphin against J. G. Dunbar and another. Judgment for plaintiff, and defendants appeal. Affirmed.

J. H. Alphin instituted this action in the chancery court against J. G. Dunbar and Sarah Dunbar to cancel and set aside, as a fraud upon his rights as a creditor, a deed from husband to wife. The facts are substantially as follows:

J. G. Dunbar became indebted to Mrs. A. L. Alphin upon an open account. Her husband, J. S. Alphin, was her agent and transacted all her business for her. She died on the 2d day of March, 1909, intestate, and left surviving her, the plaintiff, J. H. Alphin, as her sole heir at law. J. S. Alphin was the general agent of J. H. Alphin and transacted his business for him. J. S. Alphin asked Dunbar to pay the account from time to time after the death of his wife and claimed that it amounted to over $3,000. Finally, on the 18th day of November, 1911, in company with Emon O. Mahony, his attorney, he went to the residence of J. G. Dunbar about 3½ miles from El Dorado in Union county, Ark., and pressed him for a settlement of the account. He insisted that Dunbar should give him a mortgage on his lands to secure the account, and Dunbar agreed to do so if it was satisfactory with his wife and promised to come in that afternoon and execute the mortgage. Alphin and Mahony then returned to El Dorado, and a short time afterwards on the same day the father-in-law of J. G. Dunbar went into the circuit clerk's office and filed for record a deed from Dunbar to his wife to 120 acres of land. The deed was executed on February 7, 1911. J. H. Alphin at once filed suit in the circuit court against J. G. Dunbar for the sum of $3,159.07 and caused an attachment to be issued and levied on the lands in controversy together with other real estate belonging to Dunbar. On December 23, 1911, J. H. Alphin instituted this action in the chancery court against J. G. Dunbar and Sarah Dunbar, his wife, to cancel and set aside the deed as a fraud upon his rights as a creditor. On May 14, 1915, J. H. Alphin obtained judgment in the circuit court against J. G. Dunbar in the sum of $2,300. The attachment branch of the case was not tried until the 10th day of April, 1916, at which time the attachment was sustained. Dunbar owned 440 acres of land, 160 of which constituted his homestead. All of the land was ordered sold under the attachment except his homestead. The lands ordered sold under the attachment were the 120 acres in controversy and also 160 acres which had been deeded to his attorneys as a fee for defending the suits brought against him by J. H. Alphin. The lands sold under the attachment were bought by J. H. Alphin for the sum of $2,600. At the September term, 1916, the present action was tried by the chancellor, and it was decreed that the deed from Dunbar to his wife to the 120 acres in controversy should be canceled, the court having found that it was executed in fraud of the rights of Alphin as a creditor. The Dunbars have appealed.

J. W. Warren, of Camden, for appellants. Mahony & Mahony, of El Dorado, and H. S. Powell, of Camden, for appellee.

HART, J. (after stating the facts as above).

It is well settled in this state that conveyances made by the husband to his wife are looked upon with suspicion and scrutinized with care; when voluntary, they are prima facie fraudulent; and, when the debtor is insolvent, they are presumed conclusively to be fraudulent as to existing creditors. This rule is so firmly established in this state that only a few cases in support of it need be cited. Driggs & Co.'s Bank v. Norwood, 50 Ark. 46, 6 S. W. 323, 7 Am. St. Rep. 78; Brady v. Irby, 101 Ark. 573, 142 S. W. 1124, Ann. Cas. 1913E, 1054; Goodrich v. Bagnell Timber Co., 105 Ark. 90, 150 S. W. 406; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; and Simon v. Reynolds-Davis Gro. Co., 108 Ark. 164, 156 S. W. 1015.

In the present case an attempt is made by Dunbar to show that he owed his wife at the time he executed the deed to her. He, himself, testified that he owed her $800 and executed the deed to her in payment of it. The deed itself recites a consideration of $800. He testified that right...