McDonald Land Co. v. Shapleigh Hardware Co.
| Decision Date | 14 April 1924 |
| Docket Number | 298 |
| Citation | 260 S.W. 445,163 Ark. 524 |
| Parties | MCDONALD LAND CO. v. SHAPLEIGH HARDWARE CO |
| Court | Arkansas Supreme Court |
Appeal from Greene Chancery Court; Archer Wheatley, Chancellor reversed in part.
Decree affirmed.
M P. Huddleston, for appellants.
1. The evidence is clear, practically undisputed, that Paragould Arkansas, was not the "usual place of abode" of Bob J. McDonald at the time the several summonses were served upon his wife in the suits which went to judgment in the J P. court, the transcripts of which judgments were filed with the circuit clerk, and made the basis for the creditor's bill. Not only had he left, July 1, 1921, with the avowed public declaration never to return, but also, in the fall of the same year, his wife left, July 1, 1921, with the avowed public declaration never land, Ohio, to which place he came from Canada, and from there they went to Cuba, whence she returned later in 1921 to Paragould with the avowed purpose of selling and disposing of their household effects and other property. It was while she was so engaged, and was living at the home of a brother of Bob McDonald's, that the summons were served upon her, when she happened to be at the old home place looking after the furniture. The constable's return on the summons is the only contradiction of these facts, and, in the face of this evidence, the return should not be permitted to stand. 124 Am. St. Rep. 759; 21 R. C. L. 1322; 12 Col. 46; Pac. 771; 13 Am. St. Rep. 204; 19 Kan. 458; 27 Am. Rep. 149; 8 Kan. 228; 12 Am. Rep. 466; Ann. Cas. 1914A, p. 413; 32 Cyc. 518; 13 Me. 245; 14 Ohio St. 240; 84 Am. Dec. 373; 26 Vt. 748; 15 W.Va. 277; 100 F. 213.
2. The deed from Bob J. McDonald and wife conveying the swimming-pool to Bill McDonald, Jr., signed, acknowledged and mailed by him to Bill McDonald, Jr., at Havana, Cuba, on February 11, 1922, was delivered to the latter on that day; and the filing of the transcript of the judgment of the justice of the peace against Bob McDonald in favor of Shapleigh Hardware Company, in the office of the circuit clerk, on February 18, 1922, conferred no lien on the swimming-pool in favor of that company.
3. The court's holding that Bill McDonald was personally liable on the Shapleigh Hardware Company account was contrary to the preponderance of the evidence. He is not liable, even as a gratuitous bailee. 101 Ark. 81; 103 Ark. 12; 52 Ark. 364; Story on Bailment, § 23; 142 Ark. 100.
4. The creditor's bill was properly dismissed in so far as it sought to cancel the deed to the homestead. Creditors cannot complain at the conveyance of a homestead. Moreover, the sale of property in consideration of a bona fide preexisting, debt equal to or exceeding its value is not fraudulent as to creditors. 63 Ark. 232. See also 119 Ark. 12.
R. P. Taylor, for appellees.
1. Discussion of the validity of the service of the summons is out of place now. If it be conceded that the service was invalid, nevertheless appellants have failed to allege and prove the fact necessary to invoke the jurisdiction of equity to set aside the judgments as clouds, viz: a meritorious defense to the several causes of action which eventuated in judgments. 50 Ark. 458; 74 Ark. 292, 297; 84 Ark. 527, 532; 127 Ark. 306, 310; 94 Ark. 347, 350. See also 136 Ark. 537; Id. 396. There is no reason why this rule should be relaxed in favor of a nonresident or expatriate. Appellants are barred from attacking the judgments for the further reasons that Bob McDonald received notice of the suits from his wife while they were still pending, and failed to make defense. This would be true even in a direct attack on a judgment rendered without service. 157 Ark. 464.
2. As to whether or not the mailing of the deeds on February 11, 1922, constituted delivery on that day to the grantees, depends on whether the grantees selected the postal system as the agency for such delivery--and there is no proof that they selected that agency. It is a mistake, however, even treating the mailing of the deeds on February 11 as constituting delivery, followed by actual receipt thereof on February 20, to conclude that such delivery vested title free from the lien of the judgment filed on February 18. Acceptance is quite as necessary as delivery to investiture of title under a deed. 80 Ark. 8; 77 Ark. 89; 63 Ark. 374, 376. It is true that acceptance of a deed beneficial to the grantor will be presumed, and it may be conceded that our decisions, 121 Ark. 328 and 97 Ark. 283, imply that such acceptance is presumed to be contemporaneous with the delivery, but this presumption of contemporaneous acceptance gives way to liens intervening before actual delivery. 11 Bush (Ky.) 34, 21 Am. Rep. 205, 207; 54 L. R. A. 904, note. The proposition that a debtor may prefer any creditor who relinquishes a sufficient amount of his claim to constitute an adequate consideration, may be overcome by the accompanying circumstances, such as the participation by the preferred creditor in the debtor's unlawful purpose to defeat other creditors. 28 Ark. 82; 12 R. C. L. 577 et seq.
3. The evidence of Bill McDonald's personal liability for the Shapleigh Hardware Company's account is clear and conclusive. If the merchandise order was unauthorized there was no repudiation of it, but, on the contrary, an acceptance of the fruits of the agency. The attendant burden follows. 28 Ark. 59, 64; 101 Ark. 68, 75; Williston on Contracts, § 191; 6 R. C. L. 587. See also 25 Ark. 100; 53 Ark. 155, 160; 41 Ark. 502, 507.
OPINION
Judgments were obtained against Bob J. McDonald in justice court in Greene County, Arkansas, by various creditors, from January 16, 1922, to and including February 8, 1922. Summons was issued in each of these cases and service had upon McDonald, as shown by the return of the constable, as follows: "By delivering a copy and stating the substance thereof at the usual place of abode of the within named Bob J. McDonald, to Mrs. Bob J. McDonald, his wife, and a member of his family over the age of fifteen years, as I am herein commanded." Execution was issued on the several judgments, and a return of nulla bona thereon, and certified transcripts of the judgments were filed with the clerk of the circuit court of Greene County from and on January 27, 1922, to and including February 18, 1822.
Bob J. McDonald and wife executed a deed to Bill McDonald, Jr., conveying certain lots in Paragould, Arkansas, known as the "swimming-pool," and also conveyed to the McDonald Land Company certain other lots described in the deed and known as "the Bob J. McDonald homestead." The deeds were dated January 28, 1922, and were signed and acknowledged by Mrs. Bob J. McDonald on that day. The deeds were then carried with her to Bob J. McDonald, who was then in Cuba, and were by him signed and acknowledged on the 11th of February, 1922, and on that day mailed by him at Havana, Cuba, to the respective grantees at Paragould, Arkansas. The deeds were duly filed by the grantees for record in the clerk's office at Paragould, Arkansas, at 11 o'clock a. m., February 20, 1922. On March 14, 1922, the Shapleigh Hardware Company, one of the creditors that had obtained judgment in the justice court, a transcript of which had been lodged in the office of the circuit clerk February 18, 1922, filed what it called a creditor's bill in the chancery court of Greene County against the McDonald Land Company and Bill McDonald, Jr., alleging that the deeds above-mentioned were executed for the purpose of defrauding the creditors of Bob J. McDonald; that Bob J. McDonald at the time was a resident of Cuba, and that by these conveyances he had rendered himself insolvent. The other creditors who had obtained judgments in the justice court and filed transcripts thereof with the circuit clerk, as above mentioned, also were made parties plaintiff to the creditor's bill, and joined in the prayer to have the deeds mentioned canceled.
The Shapleigh Hardware Company alleged in its bill that Bill McDonald, Jr., was indebted to it on the same account as that on which it had recovered judgment against Bob J. McDonald in the justice court, and it prayed personal judgment against Bill McDonald, Jr. The judgment creditors filed, and made an exhibit to their complaint the several judgments obtained in the justice court, as indicated.
The McDonald Land Company and Bill McDonald, Jr., answered the creditor's bill, denying the material allegations thereof, and set up that no personal service was had upon Bob J. McDonald upon which to base the alleged personal judgments against him, inasmuch as he had been a nonresident of the State since July, 1921. Bill McDonald, Jr., answered, denying that he was indebted to the Shapleigh Hardware Company in any sum. The answer denied specifically that the conveyances were fraudulent, and alleged that the property conveyed therein was purchased in good faith and paid for. The McDonald Land Company and Bill McDonald, Jr., filed a cross- bill, setting up the same facts as alleged in their answer to the creditor's bill, and alleged that the judgments obtained in the justice court were null and void, that same were a cloud on their title, and prayed that same be set aside and held for naught.
On March 2, 1922, the East Arkansas Lumber Company filed its complaint in the chancery court of Greene County to foreclose a lien against Bob J. McDonald, in the sum of $ 3,286.87, for materials furnished him in the construction of the swimming-pool on the lots which had been conveyed by him to Bill McDonald, Jr. To this action service was waived, and the appearance of Bob McDonald entered as required by statute. These actions were all consolidated and tried together. The causes were submitted upon the pleadings as above...
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