Sims v. Phillips

15 S.W. 461, 54 Ark. 193, 1891 Ark. LEXIS 29

• Court: Supreme Court of Arkansas
• Decided: February 7, 1891
• Status: Published

Opinion

Cockrill, C. J.

Fraudulent •sale—Ex e m p t property. There was testimony which would have warranted the jury in finding that Sampson, the mortgagor, was entitled to claim his exemptions under the laws of this State; that the property covered by the mortgage was all the personal property owned by him at that time; and that its value was less than the exemptions allowed by law. The charge of the court excluded the consideration of these facts from the jury, and instructed them that the mortgage was void if executed with the intent to hinder and delay a creditor of the mortgagor, provided the mortgagee participated in the fraud. That was error, for if the mortgage had not been made, and the facts were as we have stated, the creditor could not have taken the property in satisfaction of his debt, and no transfer of it could be in fraud of his rights. Erb v. Cole, 31 Ark., 554; Blythe v. Jett, 52 id., 547.

We have considered no other phase of the charge, but as the error indicated pervades the whole charge upon the subject of fraud, the judgment must be reversed, and the cause remanded for a new trial.