Tennant v. Watson

• Decision Date: 09 December 1893
• Citation: 24 S.W. 495,58 Ark. 252
• Parties: TENNANT v. WATSON
• Court: Arkansas Supreme Court

24 S.W. 495

58 Ark. 252

TENNANT v. WATSON

Supreme Court of Arkansas

December 9, 1893

Appeal from Miller Circuit Court, RUFUS D. HEARN, Judge.

Judgment affirmed.

L. A Byrne for appellants.

1. An order of general attachment binds the property of defendant from the day it is placed in the hands of the sheriff. 39 Ark. 97.

2. Davis' primary motive was to put the property out of the reach of his creditors, and the deed, being absolute on its face, placed the title in Humphrey. His creditors had a right to presume the property was his, and he was thus enabled to get credit on the faith of owning it, in which case Humphrey's creditors have a right to subject it to their debts. Waite, Fr. Conv. secs. 387, 389, 398; 10 Conn. 65; 55 Ark. 123; 50 id. 42; 34 N.J.Eq. 158; ib. 19. The whole transaction was a fraud on creditors. 5 Lawson's Rights & Rem. sec. 3090.

3. No man should, by the acts of others, be given a false credit. 2 Mason, 252; 28 F. 788; 1 Wade on Att. sec. 225.

4. The deed to Davis was absolute; nothing to put creditors or purchasers on notice. The law is opposed to secret trusts. Mrs. Davis is estopped; for, by her negligence, she has misled the creditors of Humphrey to their prejudice. 55 Ark 296; Mansf. Dig. sec. 671; 30 Ark. 111; 24 F. 609.

Arnold & Cook for appellee.

The deed of Mrs. Davis was recorded before the sale, and was notice to plaintiffs. Mansf. Dig. sec. 671; 24 F. 609. Plaintiffs had actual notice of Mrs. Davis' equities before the sale. But the continuous possession of Mrs. Davis was notice. 16 Ark. 543; Ib. 541. If plaintiffs had notice, actual or constructive, they were not innocent purchasers, 16 Ark. 543; Ib. 341; 30 id. 111; Ib. 249; 31 id. 21-2; 34 id. 85; 24 F. 609.

OPINION

BATTLE, J.

This action was brought by Tennant, Walker & Company against Jesse Watson to recover the possession of a certain tract of land in Miller county. They based their right of action upon a deed executed by A. S. Blythe, as sheriff of Miller county, bearing date the 12th day of September, 1890.

Rhoda Davis, on her application, was made a defendant, and she and Jesse Watson answered and said, among other things, that Watson was not in the unlawful possession of the land; that the defendant Davis and her husband, F. M. Davis, on the 27th of July, 1888, conveyed it to Thomas H. Humphrey to secure the payment of a debt of F. M. Davis to Humphrey for $ 200; that it was agreed by the parties, at the time, that the conveyance should only operate as a mortgage to secure the payment of the debt; that, afterwards, on the 3rd day of January, 1889, the debt having been paid, Humphrey and his wife conveyed the land to the defendant Davis; that, after the conveyance of Humphrey and wife, plaintiffs, on the 3rd day of January, 1889, caused an order of attachment in their favor, and against Humphrey, to be levied on the land; that the attachment was sustained, and the land was ordered to be sold as the property of Humphrey, and was sold to the plaintiffs; that the sheriff who made the sale executed the deed on which this action is based; that the defendant Davis duly notified the plaintiffs, before and at the time the land was levied on, that she was the owner, and caused them to be notified of her claim at the sale.

The issues in the case were tried by a jury on the 23rd of June, 1891, and a verdict was returned, and a judgment thereon was rendered, in favor of the defendants; and the plaintiffs appealed.

The facts of the case are substantially as follows: F. M. Davis, the husband of the defendant, Davis, was the owner of the land, and indebted to Humphrey in about the sum of $ 200. Being the owner, and indebted, he conveyed the land to Humphrey, by deed absolute on its face, to secure the payment of the indebtedness. Mrs. Davis redeemed the land by paying the debt, but took no deed, or assignment of the mortgage, until about two months thereafter, to-wit, on the 3rd day of January, 1889, when Humphrey and wife conveyed the land to her by deed, which was acknowledged and filed for record on the 11th day of January, 1889. In the meantime, appellants sued out an order of attachment against Humphrey, and caused it to be levied on the land on the 3rd day of January, 1889, at 4 o'clock P. M. On the 11th of June, 1889, the court sustained the attachment, and ordered the land to be sold at public vendue. On the 20th of July, 1889, it was sold according to the order of the court, and appellants became the purchasers. Not having been redeemed, the sheriff conveyed it to them on the 12th day of September, 1890.

There was a cabin on the land, and about fifteen acres of it were cleared and in a state of cultivation. F. M. Davis testified in the trial that he was in possession of the land at the time he conveyed to Humphrey, and at all times since remained in possession, and had a tenant on it; and that when the land was sold he appeared and protested against the sale. The defendant Watson testified that he was "the tenant of Mr. Davis, and had lived on the land for the past three years, and made a crop on the place each year." He was on the place as Davis' tenant when the deed to Humphrey was executed.

Shall the judgment of the circuit court be affirmed?

The statutes of attachment provide that "the plaintiff in a civil action may, at or after the commencement thereof, have an attachment against the property of the defendant, * * * as a security for the satisfaction of such judgment as may be recovered." Mansfield's Digest, sec. 309. Section 325 of Mansfield's Digest provides that "an order of attachment binds the defendant's property in the county, which might be seized under an execution against him, from the time of the delivery of the order to the sheriff or other officer; and the lien to the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this chapter." But this lien is allowed for no purpose except that for which the attachment is allowed. It creates no estate in the property attached, nor divests prior rights or equities therein. "It is neither a jus ad rem nor a jus in re." The statutes, by making the attachment by which it is created a security for the satisfaction of such judgment as may be recovered, in effect, declare its only object to be to secure the judgment by preventing subsequent alienations and incumbrances. It is no part of its office to cut off, destroy, or affect the prior rights, equities, or incumbrances of third persons. But on the contrary the statute under which it can be created provides: "Any person may, before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof, or of any attached debt, present his complaint, verified by oath, to the court, disputing the validity of the attachment, or stating a claim to the property, or an interest in or a lien on it under any other attachment or otherwise, and setting forth the facts upon which such claim is founded, and his claim shall be investigated." Mansfield's Digest, sec. 356. And in this connection they further provide: "The court may hear the proof, or may order a reference to a commissioner, or may impanel a jury to inquire into the facts. If it is found that the claimant has a title to, a lien on or any interest in such property, the court shall make such order as may be necessary to protect his rights." Mansf. Dig. sec. 358.

But these rights, equities and incumbrances may be such as can be lost through the neglect of the person in whose favor they exist to comply with the statutes upon registration, or by a bona fide purchaser for value, and without notice, acquiring the property.

Section one of an act entitled "An act concerning the recording of deeds," approved December 19th, 1846, which is section 670 of Mansfield's Digest, declares that "every deed, bond or instrument of writing, affecting the title in law or equity to any property, real or personal, within this State, which is or may be required by law to be acknowledged, or proved and recorded, shall be constructive notice to all persons from the time the same is filed for record in the office of the recorder of the proper county; and it shall be the duty of such recorder to endorse, on every such deed, bond, or instrument, the precise time when the same is filed for record in his office." As a penalty for the failure to file such deed, bond, or instrument of writing for record, section two of the same act, which is section 671 of Mansfield's Digest, declares "that no deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; or against any creditor of the person executing such deed, bond or instrument, obtaining a judgment or decree, which by law may be a lien upon such real estate, unless such deed, bond, or instrument, duly executed and acknowledged, or approved, as is or may be required by law, shall be filed for record in the office of the clerk and ex-officio recorder of the county where such real estate may be situated."

The latter section came up for construction in Byers v Engles, 16 Ark. 543. That case was an action of ejectment, and the facts in it were as follows: The land in controversy was claimed by the plaintiffs as purchasers at a sale under execution. The defendant claimed under a deed from the defendant in the execution. The regularity of the sale was unquestioned. The defendant in the action of ejectment purchased the land sometime before the judgment under which the plaintiffs claimed as...