Baucum v. Cole

19 S.W. 671, 56 Ark. 259, 1892 Ark. LEXIS 149

• Court: Supreme Court of Arkansas
• Decided: May 21, 1892
• Status: Published

Opinion

fe Hbmingway, J.

The court below found that the plaintiffs’ allegation of fraud was not proved, and accordingly dissolved the attachment. The order, which was' the legal consequence of the finding, was correct, unless there was something in one of two transactions hereafter considered to constitute fraud.

The court found specifically that there was no fraud upon creditors in the sale of the mule at Hot Springs ; the burden was upon the plaintiff to show that there was, and we do not find that such proof was made.

1. Release of homestead iion.oonsideia"

The court found that the debt attached was to be paid to M. E. Cole, the wifé of the defendant, in consideration of her having joined him in the conveyance of' their homestead and relinquished her dower in it. That the relinquishment of dower is a valuable consideration to support a transfer of property by the husband to the wife, was settled in Hershy v. Latham, 46 Ark. 542 ; as the husband cannot convey his homestead unless his wife joins in the conveyance, it would follow that her joining in such conveyance was an additional consideration to support a settlement by the husband. We cannot say that the transfer to the wife of $510 of the proceeds of sale of a homestead worth $2,000 was so out of proportion to the consideration as to evidence fraud; the court below having found there was no fraud, such must be accepted as the fact. Other circumstances are referred to as indicating fraud, but they do not warrant us in disturbing the verdict. It follows that the court did not err in dissolving the attachment or in awarding to Mrs. Cole the debt attached.

2 Practice tuai°of attachment'

If is ar§'ue(l that the court erred in trying the issue upon the traverse of the attachment and the interplea, before the return term of the action. Without deciding what the proper practice is, it is sufficient to say that the plaintiff is in no position to urge the objection. The issues were tried without objection, and the implication is that the parties consented. It is true the plaintiff demurred to the traverse and the interplea, but a demurrer questions the sufficiency of the pleading and presents no objection to the order fixing the time for trial. If it is pertinent to such an order, it is as tendering an issue and invoking the court’s judgment upon it.

Affirm.