King v. Hargadine-McKittrick Dry-Goods Co.
| Court | Supreme Court of Arkansas |
| Writing for the Court | HUGHES, J. |
| Citation | 28 S.W. 514,60 Ark. 1 |
| Parties | KING v. HARGADINE-MCKITTRICK DRY GOODS CO |
| Decision Date | 01 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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