Box v. Goodbar

14 S.W. 925, 54 Ark. 6, 1890 Ark. LEXIS 4

• Court: Supreme Court of Arkansas
• Decided: November 29, 1890
• Status: Published

Opinion

Hemingway, J.

1. Mortgaee —Evidence nlinndc to explain, In this class of proceedings an inspec- . . , tion oí a deed furnishes prima facie evidence of its character, but not conclusive; for proof may be made aliunde that a deed absolute in form was intended as a mortgage, or that a deed conditional in form was intended to be absolute, and that the condition was inserted to disguise its real character. Richmond v. Miss. Mills, 52 Ark., 30.

signment. 2. when a fom t^aan The conveyance from Box to White, as trustee, contained formal clause of defeasance by the terms of which the deed was to be void if Box should pay the debts therein provided for as they matured. The deed provided that, upon default in paying said debts as they matured, White should take possession of the property conveyed and sell the same for cash in due course of business for thirty days, and if at the expiration of that time any of said debts should remain unpaid, be should sell the property at auction for the pajunent thereof. As a part of the debts were past due when the deed was executed, the condition was, by its terms, broken at the time of execution, and the trustee immediately took possession under the power to sell the property in course of trade. Although was not expressly so provided, it was clearly implied that the funds should be applied to the extinguishment of the debts as the goods were sold. Box was heavily indebted, and the conveyance covered all his property not exempt from execution.

Upon the foregoing facts, the court was justified in finding that the parties intended to make an absolute conveyance of property to raise funds to pay debts. Upon that finding it would follow that the instrument was an assignment; for the grantee in it is named as a trustee accountable to various persons for the execution of the trust. Fecheimer v. Robertson, 53 Ark., 101; Richmond v. Mississippi Mills, 52 Ark., 30. As it was not executed in accordance with the assignment laws of the State, it was a fraud upon the creditors of Box; and the judgment should have been against White for a return of the property received by him upon the interplea, and against Box sustaining the attachment.

g Judgment £faa’|}** Wea£ tachment The judgment against the interpleader for the amount of plaintiff’s judgment was erroneous. The judgment will be reversed, and the cause remanded, with directions to enter judgment as above indicated.