Mansur & Tibbetts Implement Co. v. Wood

• Citation: 38 S.W. 898,63 Ark. 362
• Parties: MANSUR & TIBBETTS IMPLEMENT COMPANY v. WOOD
• Decision Date: 16 January 1897
• Court: Supreme Court of Arkansas

38 S.W. 898

63 Ark. 362

MANSUR & TIBBETTS IMPLEMENT COMPANY v. WOOD

Supreme Court of Arkansas

January 16, 1897

Appeal from Drew Circuit Court, MARCUS L. HAWKINS, Judge.

STATEMENT BY THE COURT.

On the 21st November, 1894, R. W. Shelton, of Monticello, made an assignment for the benefit of his creditors. Plaintiff herein attached, and the assignee, Wood, intervened, claiming the attached property under and by virtue of his deed of assignment; and his intervention was sustained in the court below, and plaintiff appealed, relying for reversal of the judgment on three several grounds, to-wit:

"(1) The deed of assignment is void as to certain personal property, which it purports to convey, because a schedule of the property is referred to for description of same, but no schedule, except of notes and accounts, is attached. (2) The deed is void because it provides that the assignee shall sell the property within 120 days from the date of the deed, the statute requiring that the property be sold within 120 days after the execution of the bond. (3) The purchase of the livery stable property by Kerr at the foreclosure sale made after the assignment, and after the levy of the attachment crediting the amount of his bid--less the amount paid Miles to lift the first mortgage--on the purchase-money note due from Shelton to Kerr for the town property on which Shelton lived, and for which he held Kerr's bond for title Kerr's deeding to Shelton a part of his residence property within the constitutional homestead limit as to area, and taking the remainder back, delivering up to Shelton his note, and receiving his bond for title, and taking immediate possession of the residue of the residence property and of the livery stable, and receiving the rents and profits therefrom; and Shelton's failure to include any part of the residence property, or of the rents and profits of the livery stable property, in his deed of assignment,--constitute a fraud against the creditors, and render the deed of assignment void."

Judgment affirmed.

Wells & Williamson for appellant.

Where a deed of assignment purports to convey all of the debtor's property, and refers to a schedule as thereto attached, and no schedule is annexed, the deed is inoperative. 23 Ark. 1. The personal property did not pass by the deed. A deed of assignment which provides for a sale at a time different from that provided by statute is void. 37 Ark. 150; 47 id. 367; 52 id. 30. The deed requires a sale within 120 days from the date of the deed, while the statute provides for a sale within 120 days after the execution of the bond. The withholding of property from creditors, even under guise of a homestead, is a fraud, and vitiates the deed. 27 Kas. 375; 25 P. 415; 47 N.W. 60. The rule in cases of excess of homestead upon which there is incumbrance, is to charge the incumbrance pro rata against both the homestead value and the excess. 40 Ark. 102; 31 id. 91; 57 Mo. 380; 50 Vt. 345; id. 700; 33Cal. 225; 121 Mass. 19; 75 Tenn. 319; 48 Pa. 315.

Z. T. Wood for appellee.

1. The description in this case is sufficient without the schedule. 39 Ark. 329, 394; Burrill on Assignments, p. 187.

2. The bond was filed on the same day the deed was executed.

3. A debtor may make a partial assignment of his property. The omission to include a homestead or more than a homestead is not fraudulent, unless done with intention to defraud or mislead.

Dan W Jones & McCain for appellee.

The actual transfer and delivery indentified the property, and supplied the place of a schedule. 124 U.S. 505. But really no schedule was necessary. 39 Ark. 330, which virtually overrules 23 Ark. 1. It was not unlawful for the debtor to try and save his homestead, 39 Ark. 571; 31 Ark. 203.

OPINION

BUNN, C. J., (after stating the facts.)

The deed of assignment, in the general description of the personal property, except evidences of indebtedness sufficiently points out the property to make its identity easily determined. At least, the description is just such as is usual in the cases of tangible personal property, and the notes and accounts are minutely set forth in the schedule attached. Burrill on Assignment, § 138, after reference in the preceding section to cases which sustain the position of appellant's counsel in this case as to reference to the schedule, has this to say: "In the earlier cases in New York this doctrine was applied, but in the later cases the principle of construction, prohibiting a false or erroneous addition from vitiating what had been previously sufficiently and fully described as a...