Norton v. McNutt

• Decision Date: 31 October 1891
• Citation: 17 S.W. 362,55 Ark. 59
• Parties: NORTON v. MCNUTT
• Court: Arkansas Supreme Court

17 S.W. 362

55 Ark. 59

NORTON v. MCNUTT

Supreme Court of Arkansas

October 31, 1891

APPEAL from Clark Circuit Court, RUFUS D. HEARN, Judge.

McNutt & Young, partners in the banking business under the style of the Elk Horn Bank, in May, 1889, obtained judgment against P H. Norton, and in July, 1889, procured execution to be levied upon two mules described as a bay and a dun mule. Eugene Norton intervened and claimed the property, and gave bond for its retention. Plaintiffs moved the court for judgment on the bond, as provided by section 3045 of Mansfield's Digest. A jury was impaneled to try the right of property. The court ruled that the burden of proof in the whole case was upon the interpleader, to which he excepted.

P. H Norton, for the interpleader, testified: "I am the father of intervenor, Eugene Norton. He was 21 years old in May, 1888. He has always lived with me. A year or more before he became of age, I agreed to give him the dun mule in controversy, if he would stay at home when he became of age. I gave him the mule. Since then he has controlled said mule as he desired. The bay or 'Pete,' mule I sold to him in the early part of the fall of 1888, for his third interest in the toll cotton to be ginned during the season of 1888-9 at the gin owned jointly by interpleader, my son Jeff and myself. The toll for that season was eight or ten bales. Several years ago I gave interpleader a sow pig to encourage him to stay with me and accumulate property. In 1887-8, he had seventeen pork hogs, raised from that sow. I gave him a third interest in the gin for the hogs. He has owned and controlled the bay, or 'Pete,' mule since I sold it to him. I have no interest in either of the mules. The debt on which judgment was recovered against me was contracted about January, 1888. I was sued and judgment recovered against me in 1889. The execution which was levied on the property in controversy was issued in July, 1888." There was no other evidence.

The following instructions were asked by the interpleader

(1.) If the jury find from the evidence that the interpleader was in possession and in control of the property in dispute in this action at the time of the levy, such possession is prima facie evidence of ownership by the said interpleader, unless rebutted by the plaintiffs by other evidence.

(2.) The jury are instructed that P. H. Norton had a right to give the property in controversy in this action to his son, Eugene Norton, and in this case, if he did make a gift of any part of the property in controversy in this action, before the issue against him in this case of the execution, they will find for the interpleader, unless they find that the gift was made with the fraudulent intent to hinder, delay, or defraud the creditors of P. H. Norton.

(3.) If the jury believe from the evidence that the mules, at the time of the issuance of the execution, and of the levy by the sheriff on them, were the property of Eugene Norton, the interpleader, and that P. H. Norton had no interest in or claim of ownership to them, they may find for the interpleader.

(4.) Fraud is never presumed, but must in every case be proven by a preponderance of evidence to the satisfaction of the jury and where an act may be construed either as being in good faith or fraudulent, the law presumes the good faith of the actor, in the absence of proof of a fraudulent intent, either by circumstantial or direct evidence.

The court modified the second instruction asked by interpleader by striking out the words "before the issue against him in this case of the execution," gave the fourth instruction asked, and refused to give the first and third. At plaintiffs' instance the court gave the following instructions:

(1.) The court instructs the jury that if they find from the evidence that P. H. Norton gave Eugene Norton the dun mule in controversy, after the execution of the note upon which the judgment was rendered, they will find for McNutt & Young as to the dun mule, provided the gift was made to defraud hinder or delay P. H. Norton's creditors.

(2.) If the jury believe from the evidence that the pretended purchase of the bay or Pete mule was in fact a gift of said mule by P. H. Norton to Eugene Norton, they will find for McNutt & Young as to the bay or Pete mule, provided they find that the same was given to defraud, hinder or delay P. H. Norton's creditors.

(3.) If the jury believe from the evidence that the mules in controversy were given or conveyed by P. H. Norton to Eugene Norton for the purpose of hindering or defrauding his creditors, they will find for McNutt & Young as to both mules.

After the jury had retired and had returned into court and announced that they could not agree, interpleader asked that the following additional instruction be given:

A parent may, if not insolvent, in good faith without having a purpose to defraud his creditors, sell or even give his property to his child, and in this case, if the jury believe from the evidence that P. H. Norton conveyed to the interpleader the property in question, by sale or gift in good faith, having at the time no purpose in his heart to defraud, they will find for the interpleader.

The court refused to give the instruction. The jury found for the plaintiffs as to the bay mule, and for interpleader as to the dun mule, and judgment was rendered accordingly. Interpleader has appealed.

Judgment affirmed.

J. H. Crawford for appellants.

1. The burden of proof is upon the execution creditor, and not upon the interpleader. 50 Ark. 47; 1 Greenl. Ev., sec. 74.

2. The possession of personal property unexplained raises a presumption of ownership. 1 Thomp. on Trials, sec. 1407.

3. There was no proof of the insolvency of the execution debtor. To avoid a...