Wilson v. Wilson

• Decision Date: 24 March 1924
• Docket Number: 260
• Parties: WILSON v. WILSON
• Court: Arkansas Supreme Court

259 S.W. 742

163 Ark. 294

WILSON v. WILSON

No. 260

Supreme Court of Arkansas

March 24, 1924

Appeal from Garland Chancery Court; J. P. Henderson, Chancellor reversed.

Decree reversed.

Martin Wootton & Martin, for appellant.

A conveyance from a client to an attorney is not per se fraudulent, but is looked upon with suspicion and calls for strong evidence of its fairness. Bump on Fraud. Convy., § 67. The circumstances attending the transfer were unusual in many respects, and that is a badge of fraud. 27 C. J. 489-490; 27 Iowa 279. See also 27 C. J. 154; 32 Ill 130; 133 Ark. 250. Dower should have been awarded in the personal property of appellee. Where a husband leaves the State, carrying with him his personal property, the wife may recover a judgment for one-third its value, and have a lien therefor upon the real estate of the husband. 143 Ark. 222; 151 Ark. 114. The situs of appellee's personal property was Hot Springs. As sustaining this contention see 2 Blackstone, 16; 25 Oh. St. 10; 41 La.Ann. 1015; 68 Ind. 247; 131 Mass. 424; 75 Tex. 476; 1 Nev. 394; 100 U.S. 491; 12 Iowa 539; 16 L. R. A. 729; 78 Ark. 187; 106 Ark. 552; 94 Ark. 235; 105 Ark. 370; 126 Ark. 611; 55 L. ed. 762 (U. S.); L. R. A 1915C, 903. Having shown the appellee was the owner of personal property of over $ 30,000 in value, the law presumes the ownership remains unchanged until the contrary is shown. 22 C. J. 90, 91; 25 Ark. 459; 131 U.S. 33 L. ed. 136; 7 Ark. 450; 22 Ark. 466; 34 Ark. 498; 38 Ark. 181.

Geo. P. Whittington, for appellee Geilich.

Appellee had the right to take the conveyance to himself from Wilson to protect his pre- existing debt. 65 Ark. 511; 67 Ark. 122; 42 Ark. 521.

OPINION

SMITH, J.

Lulu Wilson and T. A. Wilson were married in this State on February 2, 1921, and on May 4, 1922, she filed suit against him in the Garland Chancery Court for divorce and alimony. On July 12, 1922, she filed a second suit against her husband and Abraham L. Geilich, in which she alleged the pendency of her suit for divorce and alimony, and that her husband was the owner of an undivided half interest in a certain lot in the city of Hot Springs which he had fraudulently conveyed to his codefendant for the purpose of defeating her claim for alimony. Those cases were consolidated and tried together. Mr. Wilson filed no answer, but Mr. Geilich did, and, in his answer, admitted the conveyance to him, but denied that it was fraudulent, and alleged the fact to be that the deed was executed in payment of an outstanding indebtedness due him from Wilson of $ 5,000, with an additional cash payment of $ 3,500, which last sum was paid by a check for $ 2,000 dated 4-28-1922, and a check for $ 1,500, date 5-11-1922.

The lot involved had belonged to Nathan Cohn, Mrs. Wilson's father, who was suffering from cancer in an advanced stage at the time Mrs. Wilson married, and who died two weeks after the marriage. Cohn was a widower at the time of his death, and was survived by only two children, Mrs. Wilson being one, and her sister, Mrs. Oberdorfer, the other, who each inherited an undivided one-half interest. Wilson bought the undivided half interest of Mrs. Oberdorfer, and, by deed dated April 28, 1922, conveyed that interest to Geilich. Mrs. Wilson did not join in the execution of the deed, and this is the deed she attacks as having been executed for the fraudulent purpose of defeating her suit for her statutory interest in her husband's property.

Mrs. Wilson alleged and attempted to prove that Wilson owned, in addition to the half interest in this lot, money and notes of the value of $ 32,000, and she prayed that one-third thereof be assigned her upon a decree being rendered in her favor for divorce.

The court found that Mrs. Wilson was entitled to a divorce, and granted it. The court also found that the deed from Wilson to Geilich was a valid conveyance, but that it was made subject to Mrs. Wilson's claim of dower, as she had not joined in the conveyance, and, having also found that the lot was not subject to partition, ordered it sold, and that the value of Mrs. Wilson's third interest for life be paid her out of the proceeds of the sale, but denied the prayer of the complaint that she be assigned an interest in the personal property, and from this decree Mrs. Wilson has appealed.

The testimony tending to show that Mrs. Wilson was entitled to a divorce is fully abstracted, and appears to be amply sufficient to entitle her to a divorce, but we do not review this testimony, as there is no appeal from that part of the decree. Lance v. Mason, 151 Ark. 114, 235 S.W. 394.

Mrs. Wilson testified that her home was in Hot Springs, and that she earned her living as a musician, and was employed as a pianist in an orchestra and as organist at the Jewish Temple, and that appellant met her while she was so employed, and courted her with such ardor that she became convinced of the genuineness of his affection. He insisted that they be married at once, and represented that he was a man of independent means and with an income sufficient to support her, without the necessity on her part of earning money by pursuit of her profession. According to her testimony, he gave her a list of secured notes which he owned, and she made a copy of this list at the time, which she made an exhibit to her deposition. He represented that he had other money, and owned real estate in New York, and that he also owned certain concessions at Coney Island from which he derived large sums of money during the summer.

According to Mrs. Wilson's testimony, her husband's treatment of her was such that a separation was inevitable, and she threatened to sue for divorce and alimony some days before this suit was actually filed. On May 8 she told her husband what she intended to do, and he said, "Your divorce will not do you any good, because I have put my property here in my attorney Geilich's name." Mrs. Wilson then said she would tell her attorney, and started to leave, but Wilson said, "Come on back; I was lying; I haven't done any such thing." She took him at his word, and did not go.

When Wilson obtained his deed from Mrs. Oberdorfer he wanted it executed in blank, with the grantee not named therein, but, when Mrs. Oberdorfer refused to execute the deed in that manner, Wilson's name was inserted as grantee. Wilson testified that he desired this done, as he contemplated filling in the name of his wife, but Mrs. Wilson insists that his plan was to have a deed that would serve the undisclosed purpose, which he then entertained, of putting the property beyond the reach of any claim she might assert against it.

It is insisted that Wilson, in fact, owned the notes and securities which he claimed to own during his courtship. A strong circumstance is that this list embraced an accurate list of notes secured by mortgages on New York city property, and it appears that Wilson received remittances from New York shortly after the interest-paying periods which corresponded exactly with the amounts of principal and interest due about the time these remittances were made. This is shown by the books of the bank in which Wilson deposited the remittances for collection for his own account.

It was shown, however, that these notes were secured by mortgages made to a Mrs. Tully, who resided in New York, at least one of which was executed in 1920, before Wilson had even met Mrs. Wilson, and all the mortgages were executed before the institution of this suit, and the indebtedness secured by them corresponded with the list which Wilson had exhibited to Mrs. Wilson before their marriage, and Mrs. Tully testified that these mortgages and the indebtedness they secured belonged to her, and Wilson's only connection with them had been as her agent.

The chancellor found that Wilson did not own these notes, and we are unable to say that finding is clearly against the preponderance of the evidence.

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