McReynolds v. Dedman
Decision Date | 09 October 1886 |
Citation | 1 S.W. 552,47 Ark. 347 |
Parties | MCREYNOLDS v. DEDMAN |
Court | Arkansas Supreme Court |
APPEAL from Benton Circuit Court, Hon. J. M. PITTMAN, Circuit Judge.
Judgment affirmed.
E. P Watson and L. H. McGill for Appellants.
It is not a fraud on creditors for the debtor to retain exemptions allowed him by law. Bump Fr. Conv., 403, 245; Burrell on Assign., 284; 31 Ark. 554; 22 Am. L. Reg., 265.
Releases may be exacted as a condition of preference, or as a condition of participation in the benefits of the assignment. Burrell Ass., 251; Sec. 3374 Mansf. Dig.; Bump Fr. Conv 628; 10 Burr. Ass., 270.
A deed exacting releases and reserving the surplus against non-assenting creditors, is valid. 3 Price (Exch.), 6; 5 Pick. 28; 2 R. I., 547; 4 Wash. C. C., 232; 2 Binney, 174; 4 Barr, 430; 7 Serg. & R., 510; 10 Ib., 439; 3 Watts, 198; 8 W. & S., 304; 5 Rawle, 221; 7 Pet., 608; 8 Leigh, 271; 8 Gratt, 457; 5 N.H. 113; 1 Curt., 471; 7 Neb. 433; 23 F. 421; Burr. Ass., 276; Bump. Fr. Conv., 399, 400, 401; 22 Am. L. Reg., 264 and notes; 36 Ark. 426.
U. M. & G. B. Rose, Ellis & McDaniel, H. A. Dinsmore for Appellee.
The deed is void upon its face.
1. It exacts releases from all assenting creditors, and provides that any surplus remaining after they are paid shall be restored to the assignor. 6 Wall., 299; 2 Kent. Com., 534; Bump. Fr. Conv., 436-7, 3 ed.; Burrell on Ass., 4 ed., 291, sec. 209; 3 Md. 49; 17 Vt. 390; 16 Md. 101; 12 Ala. 101, 664; 8 Ind. 101; 14 Id., 128; 1 Head, 34; 7 Pet., 608; 3 Watts, 198; 6 Conn. 276; Ware's Rep., 247; 4 Comst., 24; 2 Hill Chy., (S. C.), 433; 1 Am. L. C., 100; 8 Barb. S.C. 125; 36 Ark. 433.
If the deed is valid, a court of chancery must enforce it as written. 2 Seld., 520.
2. The deed being fraudulent on its face the attachment was properly sustained. Bump. Fr. Conv., 24; Wait Fr. Conv., secs. 8, 9, 10; 31 Mo. 62; 6 Hill, 438; 15 Fed. R., 338; 5 McCrary, 53; Teah v. Roth, 39 Ark. 66; Hunt v. Weiner, Id., 71.
Dedman brought suit by attachment against McReynolds, the attachment being based on an alleged fraudulent disposition of property by the defendant. Claypool interpleaded for the property attached, and the defendant filed an affidavit denying the grounds of the attachment. The interpleader claimed under a deed of assignment executed to him by the defendant, which he sets forth at large in his interplea, and which the court upon demurrer held to be fraudulent on its face; and this fraudulent deed was held sufficient to sustain the attachment.
The deed was an ordinary deed of assignment, except that it contained the following provisions:
Having conveyed all the property of the assignor, of every kind and description, the deed proceeds as follows:
The interpleader also alleged that the property assigned was worth from $ 10,000 to $ 30,000, that the debts due from the assignor amounted to about $ 80,000, and that creditors representing debts to the aggregate amount of $ 33,843.50 had accepted the conditions imposed by the deed of assignment.
The reservation of the surplus to the grantor stamps the deed as constructively fraudulent. To use the language of Ware Judge, in the case of the Watchman, Ware's Rep., 247, the grantor prefers himself to a dissenting creditor. An insolvent debtor can reserve no use or benefit to himself out of the property assigned. He may stipulate for a release, but he must dedicate all of his property, not exempt by law, to the payment of all his creditors; not necessarily to the payment of all in equal proportions, for he may prefer such as will execute releases. But the deed must provide for the distribution of any surplus that may remain in the hands of the trustee, after the payment of the preference creditors, amongst the other creditors, whether they assent or not. 2 Kent's Com., 534; Burrell on Assignments, 4 ed., sec. 209; Bump. Fr....
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