Martin v. Gwynn

• Decision Date: 22 March 1909
• Citation: 117 S.W. 754,90 Ark. 44
• Parties: MARTIN v. GWYNN
• Court: Arkansas Supreme Court

117 S.W. 754

90 Ark. 44

MARTIN v. GWYNN

Supreme Court of Arkansas

March 22, 1909

Appeal from Greene Chancery Court; Edward D. Bobertson, Chancellor affirmed.

STATEMENT BY THE COURT.

On the 22d day of December, 1886, W. H. Martin and wife conveyed 120 acres of land in Clay County to their son, Edgar C. Martin by warranty deed, which was recorded on the 27th day of December, 1886. W. H. Martin continued in possession of the land and claimed to be the owner thereof after this deed to his son was executed. More than a year afterwards, while he was still in possession, he borrowed eight hundred dollars from E. N. Royall and J. A. McNeil, for which he executed to them his note payable one year after date, and gave them a mortgage on this land to secure the note. W. H. Martin died on the 4th of February, 1891, without having paid the mortgage debt.

In September, 1891, Royall and McNeil brought suit to foreclose the mortgage. The five children of W. H. Martin, who were his sole heirs at law, were made parties defendant, as was the administrator of Martin's estate. The complaint alleged that the deed to Edgar C. Martin was a voluntary conveyance executed while W. H. Martin was insolvent, and that it was void both as to prior and subsequent creditors. The plaintiffs asked for a judgment against the estate for the debt, and for a decree cancelling the deed to Edgar C Martin, and foreclosing the mortgage by a sale of the lands. At the time this suit was instituted, Edgar C. Martin, one of the defendants, was a minor, and was residing with his uncle in Illinois, in which State his uncle had qualified as his guardian. Service was had upon him by the delivery to him and to his guardian in Illinois of a summons with a copy of the complaint attached, as provided in section 6053 of Kirby's Digest. The Illinois guardian employed an attorney who filed an answer for the infant denying all the material allegations of the complaint.

The court, after hearing the evidence, found that the deed from W. H. Martin to his son was a voluntary conveyance, and that W. H. Martin at the time he executed it "was insolvent and that said conveyance was made with the intent to fraudulently delay his creditors in the collection of their debts, both prior and subsequent." The court cancelled the deed, and decreed a foreclosure of the mortgage. The lands were sold under the decree, and purchased by the mortgagees at the sum of $ 1150, and they afterwards sold to C. T. Gwynn.

The appellant brought this suit within a year after reaching his majority for the purpose of vacating the above decree. He alleges, after setting out substantially the above facts, as grounds for vacating the decree the following: "that no warning order was published against him, no guardian ad litem was appointed, and no bond was made, as required by law, that it was not true that W. H. Martin was insolvent at the date of the deed to appellant, and it was not true that said deed was executed by W. H. Martin to defeat his prior and subsequent creditors that at that time W. H. Martin was solvent."

The answer alleged that the deed from W. H. Martin to his son was executed to defraud creditors of W. H. Martin, prior and subsequent, that the deed was not delivered, that appellant was personally served with summons as provided by law in the suit to cancel the deed and to foreclose, and that he was represented in that suit by his regular guardian, who was also personally served with summons, and that every legal step was taken to protect appellant's interest. The answer admitted that no warning order was published against Edgar C. Martin, or bond executed in his favor, and that no guardian ad litem was appointed for him.

The cause was heard upon all the pleadings, papers and depositions, both in the suit to cancel and foreclose and in this suit.

The evidence taken by agreement in the suit to cancel deed and foreclose the mortgage (and which is evidence in this case) showed that as early as February, 1882, a judgment was rendered against W. H. Martin in the sum of $ 1120. This judgment had not been satisfied, and on the 18th day of December, 1886, an execution was issued thereon for a balance of $ 443.20. In 1884 W. H. Martin executed a mortgage to C Wall. This mortgage was foreclosed on the 6th day of March, 1888, for the sum of $ 455.22, and the sale of the land under it did not satisfy the decree. On the 3d of February, 1887, Martin executed a mortgage to J. B. and J. J. Allen to secure a debt of $ 575.

J. A. McNeil testified that after the conveyances from W. H. Martin to his sons he did not own sufficient property to pay his debts, and that the Martin estate was insolvent.

E. N. Royall testified that at the time of the execution of the mortgage to him and McNeil W. H. Martin was in possession of the land and was cultivating it, and that the witness did not know that the deeds to Martin's sons had been executed.

Walter Martin testified that he did not know of the deed from his father to him until after his father's death, and that he paid no consideration; that his father had been in possession of the land for 10 years.

C. L. Sides testified that he heard W. H. Martin state during his lifetime that he executed a mortgage to Royall and McNeil in order to get money to pay off an execution in favor of Hartline. That W. H. Martin conveyed all the land he owned to his boys, Walter L. and Edgar C. Martin, except 160 acres That 80 acres of this has been sold under the decree of the court, and that the other 80 acres is not worth more than $ 200.

There was evidence tending to prove that W. H. Martin was insolvent at the time of his death, and the court so found. The court found in favor of appellees, and dismissed the complaint for want of equity.

Affirmed.

J. D. Block and Murphy, Coleman & Lewis, for appellant.

1. Under the statute the minor had a right to bring suit to vacate the decree. Kirby's Digest, § 6248, 7 Ark. 415; 81 Id. 464.

2. The deed was not void as to creditors. The father was solvent at the time the deed was executed. 101 U.S. 227; 111 Id. 118; 74 Ark. 161; 50 Id. 46; 42 Id. 170; 56 Id. 238; 8 Wheat. 229; 112 U.S. 149; 14 A. & E. Enc. Law, (2 Ed.) 309; 63 Ark. 416.

J. H. Hill, L. Hunter and G. B. Oliver, for appellees.

1. Service was had according to law. Kirby's Digest, §§ 6553-4, 6023, 4434. In proceeding under §§ 4431-3, it is necessary to show errors in the judgment sought to be set aside. 49 Ark. 417.

2. The deed was void as against creditors and bona fide purchasers.

OPINION

WOOD, J., (after stating the facts.)

The court found that "all the service which was had upon the said Edgar C. Martin was by summons by certified copy of the complaint attached, and made upon him in the State of Illinois, where he then resided, that he had no guardian in the State of Arkansas, and that his regular statutory guardian in the State of Illinois employed an attorney in said cause who filed the answer therein." This service was in compliance with the requirements of section 6053 of Kirby's Digest, and when service is had in this way "it shall be deemed an actual service of the summons." Section 6054, Kirby's Digest. Therefore, as no personal judgment was rendered against appellant in the suit to set aside the deed, and as he was not constructively summoned, the bond required to be filed by section 6254, Kirby's Digest, in favor of parties constructively summoned was not necessary. See section 6264, Kirby's Digest. The court therefore had jurisdiction of appellant in the suit to cancel his deed.

The court accepted the defense that was made for him by his guardian appointed in a foreign State where the appellant resided. The attorney employed by his guardian filed an answer denying all the material allegations of the complaint, and the court doubtless considered it a bona fide and full defense, as much so as could have been made by...