King v. Ruble

• Decision Date: 18 April 1891
• Citation: 16 S.W. 7,54 Ark. 418
• Parties: KING v. RUBLE
• Court: Arkansas Supreme Court

16 S.W. 7

54 Ark. 418

KING v. RUBLE

Supreme Court of Arkansas

April 18, 1891

APPEAL from Boone Circuit Court, RICHARD H. POWELL, Judge.

Attachment to test the validity of an assignment for the benefit of creditors. The court held the assignment void. The assignee appeals. The opinion states the facts necessary to its understanding.

Affirmed.

Crump & Watkins for appellant.

The reservation of the exemptions allowed by law in the manner in which they are claimed does not render the deed void. The debtor reserves nothing that the creditors could reach, or were interested in. 31 Ark. 554; Warvelle on Vendors, p. 621 sec. 17. The assignor has the right to assign all his property and demand his exemptions in money from the assignee. Thomps. on H. & Ex., sec. 436; Burrill on Ass. (4th ed.), sec. 96, and notes; 15 Mo. 544; 26 Penn. St., 473; 49 id., 465; 76 id., 279; 16 N.Y. 562; 22 Tex. 708; 18 Ind. 507; 63 Ia. 25; 12 Mich. 180; 17 id., 38; 41 id., 632; 2 Heisk. (Tenn.), 404; 35 Ga. 180.

W. F Pace and Sanders & Hill for appellee.

A deed of assignment, deed or mortgage, which conveys all the property of the assignor to the assignee, and then reserves "the exemptions allowed by law," without specifying the property claimed as exempt, is, under the laws of Arkansas, void. 41 Ark. 70; 4 N.W. 481; 41 Ark. 495; 44 Barb 263; 25 Conn. 311.

The cases in Michigan, Indiana and Pennsylvania, cited by appellant, are upon local statutes, differing from ours in terms and intent, and are not decisive authority. 52 Ark. 41. In those States the statute exempts the property itself. Burrill on Ass. (5th ed.), sec. 96. In Arkansas the debtor has only a right to claim property as exempt, which must be exercised in the manner pointed out by law. Const., art. 9, sec. 2; Mansf. Dig., sec. 3006; 47 Ark. 400; 49 id., 116; 13 S.W. 729; 52 Ark. 547.

OPINION

HEMINGWAY, J.

The claim of the interpleader was founded upon an assignment. On the trial of his interplea he offered the assignment in evidence, and the court excluded it for fraud upon its face. This ruling is the only matter presented for our consideration.

The interpleader contends that the ruling was erroneous, while the appellee contends that it may be justified upon either of four grounds. The contention of the appellee opens a wider field than we have thought it necessary to examine; for, in the view that we have taken as to one ground of the contention, but one conclusion could be reached as to the disposition of the appeal.

The deed, by the express terms of its granting clause, transfers all the grantor's property, of every character and description, except his homestead. It contains a habendum clause in the form that is usual in such instruments, immediately following which directions to the assignee are set out. The first direction is as follows: "That the assignee dispose of the property in the manner provided by law for the disposition of such trust property; that he pay me a sum which, in addition to my wearing apparel and those of my family and such other property as I may select at its appraised value, will make me, the said Thomas A. Coulter, the amount of $ 500, which I hereby claim and reserve as the amount allowed me by law as exempt from sale."

The form, as well as the substance, of the above direction shows that it was not intended to curtail the grant or to exclude from the transfer such property as the assignee was entitled to claim under the exemption laws; but it leaves the scope of the granting clause unimpaired, and directs the assignee to pay to the assignor out of any money realized from the property assigned a sum equal to the amount of his authorized exemptions. Its effect upon the assignment therefore presents a question essentially different from that presented in the many cases cited, in which it was held that the title to the exempt property never passed from the assignor. The question in this case is one which has been seldom, if ever, presented or considered upon a similar state of fact in reported decisions. Mr. Burrill seems to think that an assignor may well except from the grant of his assignment his authorized exemptions, by terms of general description, but that if he includes them in the grant and transfers title to the assignee, he cannot reserve to himself a benefit by way of compensation out of the assigned property. Burrill on Assignments, sec. 202. And this distinction is made under the general rule that an insolvent debtor can make no assignment of his property in trust for himself to the injury of his creditors. It is contended that the provision under consideration does not come within this...