Johnson v. Johnson

• Decision Date: 02 December 1912
• Citation: 152 S.W. 1017,106 Ark. 9
• Parties: JOHNSON v. JOHNSON
• Court: Arkansas Supreme Court

152 S.W. 1017

106 Ark. 9

JOHNSON v. JOHNSON

Supreme Court of Arkansas

December 2, 1912

Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor reversed.

STATEMENT BY THE COURT.

The appellant instituted this action in the Lincoln Chancery Court to have homestead and dower assigned to her in certain lands situated in Lincoln County, Arkansas, which she described in her complaint. She alleged that she was the widow of Jarrett Johnson, who died intestate March 21, 1908 that he left surviving the appellees who were his sole heirs at law; that he was seized of an estate of inheritance in the lands described, having purchased the same on or about the first of November, 1901; that he had the title placed in Aaron Moorman and Mittie Moorman, as trustees; that from the time of his purchase until his death in 1908 Jarrett Johnson lived upon said land, cultivated a portion of it and exercised an exclusive supervision over all of it as his own property; that after the death of Jarrett Johnson, Jarrett Johnson, Jr., and Wm. H. Johnson forcibly took possession of the said lands, holding the same against plaintiff and refusing to account to her for any rents or profits; that she had demanded her dower and homestead but had never received either. She further alleged that Aaron and Mittie Moorman after the death of Jarrett Johnson, for the purpose of defeating the rights of the plaintiff to homestead and dower in the lands, conveyed the same to the defendants without any valuable consideration. She prayed that the deed executed by Aaron and Mittie Moorman be set aside and cancelled as a fraud upon her rights; that the title to the land be declared in the defendants, subject to the rights of homestead and dower in the plaintiff. She prayed for an accounting of the rents and profits, and that the defendants be restrained from committing waste upon the lands, and that her homestead and dower rights be assigned her. The appellees, in their answer admitted that the plaintiff was the widow of Jarrett Johnson their father, at the time of his death. They admitted that they were in possession of the lands, and alleged that they claimed the same as purchasers and not as heirs of Jarrett Johnson. They denied that their father died seized of an estate of inheritance in the lands (describing the same), and denied that the plaintiff, by virtue of her marriage with their father, was entitled to dower and homestead in the lands.

The court dismissed the complaint for want of equity, and the appellant duly prosecutes this appeal.

Decree reversed and cause remanded.

Asa C. Gracie and W. K. Toney, for appellant.

The evidence in the case is sufficient to establish a resulting trust in the Moormans, and if a trust existed in them, appellant is entitled to dower and homestead. Under the testimony and in view of all facts developed in evidence, the title should be vested in appellees subject to the rights of the widow to homestead and dower. 9 Ark. 518; 11 Ark. 82; 27 Ark. 87; 29 Ark. 612, 630; 44 Ark. 365; 45 Ark. 481; 40 Ark. 62; 48 Ark. 169; 64 Ark. 155; 70 Ark. 145; 98 Ark. 452; 31 Ark. Law Rep. 554; 15 Am. & Eng. Enc. of L. (2 ed.) 1132; 14 Cyc. 909-912, note 23; 26 Ark. 368; 21 Cyc. 508; 40 Ark. 69.

Crawford & Hooker, for appellee.

The evidence is entirely wanting in that fullness and certainty necessary under the rule to establish a resulting trust. 75 Ark. 446; 89 Ark. 182.

A fraudulent conveyance is good as between the parties. If the title to the land in this case was taken in the name of the Moormans for fraudulent purposes, even though the consideration was paid by the deceased, he could never in his lifetime have invoked the aid of law or equity to secure in himself title to the lands. 11 Ark. 411; 47 Ark. 301; 43 Ark. 84; 52 Ark. 389; Id. 171; 1 L. R. A. (N. S.) 1007. His privies could not maintain suit after his death. 13 L. R. A. (N. S.) 1118. See also 74 Ark. 276; 77 Ark. 60; 19 Ark. 650; 13 Ark. 595.

OPINION

WOOD, J., (after stating the facts).

1. It could serve no useful purpose to set out the evidence, which is voluminous. It tends to show that Jarrett Johnson, Sr., purchased the land in controversy about the 24th day of November, 1902, and had the title thereto taken in the name of Aaron Moorman and Mittie Moorman. Johnson furnished the purchase money and had the title put in the name of Aaron Moorman and his sister, Mittie Moorman, for the purpose of defrauding his first wife, from whom he was seeking to obtain a divorce, and also for the purpose of defrauding certain creditors who had a judgment against him. Under these circumstances there was no resulting trust in favor of Johnson. Although Johnson furnished the purchase money, as he had the conveyances of the land made to third parties for the purpose of defrauding creditors, he had no estate in the land, legal or equitable, that he could set up.

"A conveyance to defraud creditors is good between the parties and against all persons except creditors of the grantor who are in position to assail it." Bell v. Wilson, 52 Ark. 171, 12 S.W. 328. See also, Martin v. Taylor, 52 Ark. 389, 12 S.W. 1011; Millington v. Hill, 47 Ark. 301, 1 S.W. 547.

In the case of Moore v. Waldstein, 74 Ark. 273, 85 S.W. 416, the court said: "Before the act of 1895 no one except creditors could set aside a deed to defraud them. It was valid as to all other persons. * * * The act of 1895 made a change of this condition of affairs, to the extent of allowing a fraudulent deed to be set aside for the benefit of the heirs at law. This is the only change made."

We have no statute allowing a fraudulent conveyance of a husband to be set aside for the benefit of the widow so as to preserve her dower in lands so conveyed. In the absence of such statute, the widow has no dowable interest in such lands for the reason that the husband, at the time of his death was not seized of any estate of inheritance, either in law or equity, in lands that had been by him conveyed in fraud of creditors.

The case of King v. King, et al., 61 Ala. 479, is very similar to the case at bar. King purchased lands, having the deeds made in the name of third parties for the purpose of covering up the property so that it could not be made subject to his liabilities. He took possession of the property, made improvements and repairs thereon and received the income thereof as his own. Mrs. King, the widow, sued for dower in the lands. The court held (quoting syllabus) that, "A conveyance to hinder, delay and defraud creditors, is voidable as to them, but valid as to the parties to it; and where by such a conveyance the husband, without intending any fraud on his future wife, divests himself of all estate and use in the lands, nothing is left out of which dower can be carved and the future wife claiming through him at his death, can not dispute the validity of the conveyance, or have a court of equity engraft any use or trust on the lands, based on the husband's fraud, out of which to carve dower." See also, Gross v. Lange, 70 Mo. 45; Thomas Miller v. Margaret Wilson, et al. 15 Ohio 108; Bump. on Fraudulent Conveyances, p. 481.

2. The complaint alleged that "from the time he purchased said land until his death in 1908, Jarrett Johnson lived upon said land, cultivated a portion of it and exercised an exclusive supervision over all of it as his...