Lazarus v. Camden National Bank

CourtSupreme Court of Arkansas
Writing for the CourtBATTLE, J.
Citation42 S.W. 412,64 Ark. 322
PartiesLAZARUS v. CAMDEN NATIONAL BANK
Decision Date16 October 1897

42 S.W. 412

64 Ark. 322

LAZARUS
v.
CAMDEN NATIONAL BANK

Supreme Court of Arkansas

October 16, 1897


Appeal from Ouachita Circuit Court CHARLES W. SMITH, Judge.

Judgment affirmed as to property assigned by John Lazarus and as to other property reversed.

Geo. W. Murphy and Gaughan & Sifford, for appellants.

Exemptions may be selected after assignment (4 Lawson, Right & Rem., § 96; Burrill, Assignments, § 96; 59 Miss. 80; 15 Mo.App. 544; 85 Mo. 23; 100 Pa.St. 580; 36 P. 195; 12 Mich. 180; 19 So. 344; 24 S.E. 103; 64 N.W. 78), even in cases where the assignment purports to carry all of assignor's property, and there is no reservation of exemptions mentioned, 60 Ark. 1; 57 Ark. 333. The withdrawal of funds by each of the appellants, before the assignment, was not fraudulent, because said amounts were charged against their exemptions claimed after assignment. 42 Ark. 423; 54 Ark. 449; 99 U.S. 119. There was no fraud in the sale of the homestead of John Lazarus to his son, Abraham Lazarus, 38 S.W. 898. A valuable part of the property must be withheld to make it fraudulent. "Lex non curat de minimis. The court erred in not giving the fifteenth instruction asked by appellants.

Smead & Powell, Thornton & Thornton, and Geo. H. Sanders, for appellee.

The assignment is fraudulent and void, because (1) the assignee was given possession before he executed his bond and filed his inventory (24 F. 465; ib. 460; 53 Ark. 88); (2) the exemptions claimed, and the manner of claiming them, make the assignment void (66 Ia. 240; 54 Ark. 229; 24 Me. 448; Burrill, Assignments, p. 98); (3) appellants both withheld valuable personal property (53 Ark. 81; 54 Ark. 418; 46 Ark. 405; 57 Ark. 331); (4) the transfer of the homestead of John Lazarus to his son, Abraham Lazarus, was fraudulent and void (53 Ark. 81; 54 Ark. 418; 46 Ark. 405).

OPINION [42 S.W. 413]

[64 Ark. 323] BATTLE, J.

On the 27th day of December, 1894, Lazarus & Levy, a firm composed of John Lazarus and Joe Levy, for the benefit of its creditors, conveyed to W. F. Avera, as assignee, all of their partnership property; and in the same instrument each member of the firm conveyed all of his individual property, except the property reserved in the assignment. The deed was in the following form:

"Know all men by these presents, that we, Lazarus & Levy, a firm composed of John Lazarus and Joe Levy, being [64 Ark. 324] indebted to sundry parties, a list of whom, as nearly as correct as we can make, with the amounts due them, respectively, is as follows, to-wit: [Here they name them, and the amounts of their claims.] And being desirous that all of our property be appropriated towards the payment of our indebtedness, in consideration of the premises before and hereinafter mentioned, and the sum of one dollar to us paid, do hereby bargain, grant, sell and convey to W. F. Avera, of the city of Camden, Arkansas, and to his successors, in trust, the following described property, to-wit: [Here they describe the property.] To have and to hold all of the above and foregoing lands and tenements, with the appurtenances thereunto belonging, to the said W. F. Avera, in trust, and his successors.

"And I, John Lazarus, being desirous that all individual property owned by me shall be appropriated towards the payment of the debts of said firm and partnership, do hereby bargain, grant, sell and convey unto the said W. F. Avera and his successors, in trust, all the personal property of every kind, character and description owned by me, except such household and kitchen furniture and other property, not to exceed in value the sum of five hundred dollars, allowed as exemptions under the constitution of the state of Arkansas. Also, for the considerations and purposes aforesaid, I hereby grant, bargain, sell and convey unto the said W. F. Avera, and his successors in trust, the following real property, lying and being situated in Ouachita county, Arkansas, to-wit: [Here he describes the property.] Also, all other real property by me owned, and not specifically mentioned herein. It is not intended to convey or attempt to convey, by this instrument, lot No. 3 in Woodward block, fronting on the south side of Washington street on which I now reside. All the above lots are situated in the city of Camden, Arkansas. To have and to hold all of the above granted lands, lots and premises, with the appurtenances thereunto belonging, unto the said W. F. Avera and his successors, in trust.

"I, Joe Levy, aforesaid, being desirous that all of the debts owing by the said firm of Lazarus & Levy be paid, do hereby bargain, grant, sell and convey unto the said W. F. Avera and his successors, in trust, all of the personal property [64 Ark. 325] of every kind and description, and wherever situated, except such household and kitchen furniture and other property, not to exceed in value the sum of five hundred dollars, allowed as exemptions under the constitution of the state of Arkansas; also the following real property, to-wit: [Here he describes the property.] And all other real estate owned by me, whether herein specifically described or not, except my homestead, upon which I now reside, in the city of Camden, Arkansas. To have and to hold all of said property unto the said W. F. Avera and his successors, in trust, with the appurtenances thereunto belonging.

"All of the above described real stud personal property so conveyed to the said W. F. Avera is in trust that he will, after filing the bond and inventory required by law, dispose of the same in the manner and within the time prescribed by the statutes of the state of Arkansas in cases of general...

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2 practice notes
  • Sanger v. McDonald
    • United States
    • Supreme Court of Arkansas
    • July 13, 1908
    ...property to be devised. The testator, and not the devisees, is the sole person to be satisfied with the will. 54 Ark. 588; 61 Ark. 141; 64 Ark. 322; 65 Ark. 64; 72 Ark. 440; 75 Ark. 263; 76 Ark. 224; 29 Ark. 151. 3. The relation of parent and child is no evidence of fraud or undue influence......
  • Nelson v. Harper, 112
    • United States
    • Supreme Court of Arkansas
    • January 17, 1916
    ...Miss. 69; 53 Ark. 81; 64 Id. 322. Nor can he withhold a part of his property, or omit any from the assignment. Cases, supra; 46 Ark. 405; 64 Ark. 322; Acts 1913, Act No. 88. The property was not in custodia legis. 2 Ruling Case Law, p. 702, art. 54. R. G. Harper, per se, and W. E. Patterson......
2 cases
  • Sanger v. McDonald
    • United States
    • Supreme Court of Arkansas
    • July 13, 1908
    ...property to be devised. The testator, and not the devisees, is the sole person to be satisfied with the will. 54 Ark. 588; 61 Ark. 141; 64 Ark. 322; 65 Ark. 64; 72 Ark. 440; 75 Ark. 263; 76 Ark. 224; 29 Ark. 151. 3. The relation of parent and child is no evidence of fraud or undue influence......
  • Nelson v. Harper, 112
    • United States
    • Supreme Court of Arkansas
    • January 17, 1916
    ...Miss. 69; 53 Ark. 81; 64 Id. 322. Nor can he withhold a part of his property, or omit any from the assignment. Cases, supra; 46 Ark. 405; 64 Ark. 322; Acts 1913, Act No. 88. The property was not in custodia legis. 2 Ruling Case Law, p. 702, art. 54. R. G. Harper, per se, and W. E. Patterson......

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