Harcrow v. Harcrow
| Decision Date | 24 March 1900 |
| Parties | HARCROW v. HARCROW. |
| Court | Arkansas Supreme Court |
Action by M. L. Gardiner, administrator of the estate of J. C. Harcrow, deceased, against Elbert Harcrow on a note. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Action in equity upon the following note, and to enforce a vendor's lien upon the lands therein described: The defense set up was want of consideration, and, further, that the note was part of a scheme to defraud the creditors of J. C. Harcrow. The facts appear in the opinion. The chancellor found against the defendant, and gave judgment accordingly. From this judgment the defendant appealed.
F. T. Vaughan and Jas. H. Stevenson, for appellant. Z. T. Wood and W. S. & F. L. McCain, for appellee.
RIDDICK, J. (after stating the facts).
This is an action by the administrator of the estate of J. C. Harcrow against Elbert Harcrow to recover judgment upon a promissory note for the sum of $9,000, and to declare the same a lien upon the land described in the note.
The first contention of the defendant is that there was no consideration for the note. He states that his brother J. C. Harcrow during his last sickness was living with one Sallie Smith, a woman with whom he had sustained immoral relations, and by whom he had illegitimate children. His brother, so defendant testified, said to him that the woman was annoying him by insisting that he should make some provision for her and her children, and that at the urgent request of his brother, and to appease the woman, this note was executed, under a promise that his brother would in a few days return the note. In a day or two afterwards he called upon his brother, and asked for the note. His brother requested the woman to get it, and give it to defendant, but it had been mislaid, and could not then be found; so, instead of returning the note, his brother executed to him a receipt in writing, stating that he had received payment of the note in full. This is his story, and there is much other evidence bearing on this point, but we need not discuss it. The questions as to whether this note was without consideration, and whether the receipt purporting to be signed by J. C. Harcrow was genuine or forged, were submitted to the chancellor, who found against the defendant, and we can by no means say that this finding is clearly against the weight of evidence. If defendant be injured by such finding, there is little ground for sympathy; for, by his own confession, this note was executed as a part of a scheme to deceive a wronged and ignorant woman. If this be true, and he is compelled to pay the note, it is a case of one caught in his own trap. But we do not believe that any mistake was made. At the time this note was executed J. C. Harcrow besides these illegitimate children, had, living in the same county, a lawful wife and child. As this fact was well known, it is not apparent why the execution of this note to him should have been regarded by Sallie Smith as a provision for her or her children. It does not appear that the attempted return of the note of which defendant testified was kept secret from her, nor why the possession of it for only a brief time would have tended in any way to shield the brother of defendant from her importunities. In fact, the whole story of the defendant in reference to the execution of the note and the written release seems to us unreasonable and improbable. It is in conflict with the facts stated in the amendment to his answer, in which he alleged that the land for which the note purports to have been executed was purchased by defendant and J. C. Harcrow jointly, and the title taken in the name of the defendant for the purpose of covering up the interest of J. C. Harcrow in such property and defrauding his creditors. After considering this amendment in connection with the other facts in proof, we have only little doubt about the correctness of the finding of the chancellor on this point, and it must stand.
The facts in this case, as we see them, can be briefly stated: About 1881 the defendant and his brother commenced the mercantile business together as partners, at Lanark, in this state. J. C. Harcrow had previously failed in business, and this new business venture was carried on in the name of the defendant, Elbert Harcrow. The capital they invested in it was no doubt small, but the business prospered, and after some years the firm had a surplus of money on hand. This money was from time to time invested in land for the benefit of the firm, and the title taken in the name of Elbert Harcrow; that, as before, being the name in which the business was carried on. In this way, after some 10 or 12 years, the whole or nearly all of the firm's assets were converted into land. In 1893, J. C. Harcrow was stricken with consumption, and, knowing that the end of life was approaching, he sent for his brother, and they had some kind of a settlement of their partnership affairs, and the note upon which this action is based was given by the defendant to his brother for his share of the partnership assets, which, as before stated, consisted mainly, if not altogether, of land. The note on its face purports to have been executed for certain tracts of land therein described, they being, as we think, that portion of the firm's assets allotted to J. C. Harcrow in the settlement.
The contention is made that under these facts the action cannot be maintained, because it is said the property was conveyed to the defendant for the purpose of defrauding the creditors of J. C. Harcrow. The question as to whether one who sells property to another for the purpose of defrauding his creditors can maintain an action on a note given by the vendee for the purchase money has been much discussed by the courts of the different states. Quite a number of them hold that such actions cannot be maintained, and that view has been approved by this court. Payne v. Bruton, 10 Ark. 53; Nellis v. Clark, 20 Wend. 24; Nellis v. Clark, 4 Hill, 424; Church v. Muir, 33 N. J. Law, 318; Davis v. Sittig, 65 Tex. 499; Norris v. Norris, 9 Dana, 317; note to Whitworth v. Thomas (Ala.) 3 Am. St. Rep. 727 (s. c. 3 South. 781). On the other hand, several of the ablest courts hold, under statutes similar to ours, that by the terms of the statute such contracts, though void as to creditors, are...
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