King v. Hargadine-McKittrick Dry-Goods Co.

CourtSupreme Court of Arkansas
Writing for the CourtHUGHES, J.
Citation28 S.W. 514,60 Ark. 1
PartiesKING v. HARGADINE-MCKITTRICK DRY GOODS CO
Decision Date01 December 1894

28 S.W. 514

60 Ark. 1

KING
v.
HARGADINE-MCKITTRICK DRY GOODS CO

Supreme Court of Arkansas

December 1, 1894


Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E. BRYANT, Judge.

Judgment reversed and cause remanded.

Clayton, Brizzolara & Forrester, for appellant.

1. Sec. 31, act of congress approved May 2, 1890, extends and puts in force in the Indian Territory chap. 8 of Mansf. Digest. See Stat. U. S. 1889, 1890, pp. 94, 95. Hence Belt was entitled to claim the exemptions.

2. The claim of property as "exempt" in a deed of assignment, when in fact it is not exempt, does not invalidate the assignment. 15 Mo.App. 544; 62 Wis. 167; 61 Id. 335; Ib. 293; 23 Fed: 676; 9 Kas. 30; 21 Id. 710; 85 N.Y. 464; 53 Hun, 45; 59 Miss. 801; 42 Am. Rep. 355.

3. If two interpretations can be given, that which renders the deed legal and operative should be given, rather than that which will render it illegal and void. Burrill, Ass. (6 Ed.) p. 281-2-3; 22 Wend. 483, 488; 61 Tex. 406; 59 Miss. 80; 54 Ark. 475; 78 Iowa 482.

4. Assignments have been repeatedly upheld which stipulated for releases as a condition to participation in the assets. 36 Ark. 406; 47 Id. 347; Ib. 367; 53 Id. 78.

Jos. M. Hill for appellee.

1. A deed of assignment exacting releases from creditors as a condition of preference is void, unless it is a general assignment of all the debtor's property. 47 Ark. 347; Ib. 367; 53 Id. 75.

2. The reservation of certain property as exempt made the assignment a partial one, and it was void. 28 F. 123; 139 U.S. 628; 31 Md. 87; Burrill, Ass. secs. 100, 103; 2 Heisk. 411; 5 Id. 686; Ib. 736. If the deed be construed as passing all of the property not exempt, then it is void for uncertainty. 4 N.W. 481; 25 Conn. 311; 8 Kas. 574; 20 N.W. 674; 41 Ark. 70; 41 Id. 495.

3. Even if the exemptions were valid, the deed was a partial assignment with references, and is void. 4 Ark. 349; 2 Bigelow, Fraud, pp. 566-7; 6 Hill, 438; 2 N.Y. 365; 12 Barb. 168; 18 Id. 272; 15 N.Y. 9; 17 Vt. 310; 3 Md. 40; 21 Ala. 380; 22 Id. 238.

OPINION [28 S.W. 515]

[60 Ark. 2] HUGHES, J.

The appellee brought suit and sued out an attachment against Jno. C. Belt. The appellant, King, interpleaded, and claimed the property upon which the attachment was levied by virtue of an assignment for the benefit of creditors made to him by Belt, in which assignment the property so conveyed is described. [60 Ark. 3] Said deed of assignment was made in the Indian Territory, and some of the property...

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9 practice notes
  • Baxter County Bank v. Copeland, 158
    • United States
    • Supreme Court of Arkansas
    • 12 Octubre 1914
    ...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. If the failure to ......
  • Adams v. Allen-West Commission Co.
    • United States
    • Supreme Court of Arkansas
    • 8 Enero 1898
    ...of a debt, and therefore is not affected by the assignment. 52 Ark. 42; 54 Ark. 8; 59 Ark. 273; 59 Ark. 571; 49 F. 401; 59 Ark. 503; 60 Ark. 1; 41 S.W. 581. OPINION [64 Ark. 605] BUNN, C. J. J. H. B. Adams and C. R. Adams, merchants and partners, doing business [44 S.W. 463] in the town of ......
  • Wimberley v. Bank of Portia, 326
    • United States
    • Supreme Court of Arkansas
    • 23 Abril 1923
    ...and the chancellor erred in holding otherwise. 52 Ark. 30; 80 Ark. 182; § 489, C. & M. Digest; 122 Ark. 40; 6 Ark. 161; 104 Ark. 222; 60 Ark. 1; 58 Ark. 556. Trust fund could not be applied by bank to payment of its claims against the creditor. 69 Ark. 47; 68 Ark. 71; 28 L. R. A. (N. S.) 48......
  • Vahlberg v. Birnbaum
    • United States
    • Supreme Court of Arkansas
    • 19 Junio 1897
    ...149. If the property claimed was not exempt, then it passed by the deed, and was not included in the reservation. 59 Ark. 593. See also 60 Ark. 1; 35 N.W. 47; 21 id. 280; 63 F. 90; 21 N.W. 286. The eighth instruction is not the law, and the sixth is wholly abstract. 54 Ark. 129, and cases c......
  • Request a trial to view additional results
9 cases
  • Baxter County Bank v. Copeland, 158
    • United States
    • Supreme Court of Arkansas
    • 12 Octubre 1914
    ...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. If the failure to ......
  • Adams v. Allen-West Commission Co.
    • United States
    • Supreme Court of Arkansas
    • 8 Enero 1898
    ...of a debt, and therefore is not affected by the assignment. 52 Ark. 42; 54 Ark. 8; 59 Ark. 273; 59 Ark. 571; 49 F. 401; 59 Ark. 503; 60 Ark. 1; 41 S.W. 581. OPINION [64 Ark. 605] BUNN, C. J. J. H. B. Adams and C. R. Adams, merchants and partners, doing business [44 S.W. 463] in the town of ......
  • Wimberley v. Bank of Portia, 326
    • United States
    • Supreme Court of Arkansas
    • 23 Abril 1923
    ...and the chancellor erred in holding otherwise. 52 Ark. 30; 80 Ark. 182; § 489, C. & M. Digest; 122 Ark. 40; 6 Ark. 161; 104 Ark. 222; 60 Ark. 1; 58 Ark. 556. Trust fund could not be applied by bank to payment of its claims against the creditor. 69 Ark. 47; 68 Ark. 71; 28 L. R. A. (N. S.) 48......
  • Ewing v. Walker
    • United States
    • Supreme Court of Arkansas
    • 4 Mayo 1895
    ...1 Devlin on Deeds, sec. 262; 16 Pet. 106; 85 Pa.St. 231; 2 Ired. Eq. (N. C.) 360; 25 Wend. 545; 25 Ark. 225; 21 Wall. (U.S.) 185; 28 S.W. 514. A trust cannot fail for want of a trustee, or by failure of a trustee to accept. A court of chancery will appoint a new trustee. 21 Wall. 185; 10 Ri......
  • Request a trial to view additional results

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