United States Fidelity & Guaranty Co. v. Smith , 103 Ark. 145 ( 1912 )

Kirby, J.,

(after stating the facts). It is contended by appellant that, notwithstanding the lands attached constituted the homestead of appellee, they were nevertheless subject to the payment of its judgment.

Article 9, section 3, of the Constitution exempts the homestead of a resident of the State from the lien of any judgment or decree of any court, and from sale under execution' or other process thereon, except such as may be rendered for the purchase money * * * or against executors, administrators, guardians, receivers, attorneys for moneys collected by them, and other trustees of an express trust for moneys due from them in their fiduciary capacity.”

Does appellant’s judgment come within the exception to this clause of the Constitution? We do not think so.

Express trusts are those created by the direct and positive acts of the parties manifested by some instrument in writing, whether by deed, will, or otherwise. Implied trusts are those which are deducible from the transaction as a matter of clear intention but not found in the words of the parties, or which are superinduced upon the transaction by operation of law as matter of equity independent of the particular intention of the parties. 28 Am. & Eng. Enc. of Law, (2 ed.), p. 859; 2 Story’s Eq. Jur. 980; 1 Pom. Eq. Jur. 152; Perry on Trusts, 24.

In Sanders v. Sanders, 56 Ark. 590, a case where it was attempted to subject the homestead of an attorney at law to the payment of a judgment for money which had been received by him upon the giving of a forthcoming bond to discharge an order of attachment and garnishment, and was held as indemnity against liability upon such bond, the court held that he did not receive the money as an attorney, and said:

“The homestead is not, under the Constitution of 1874, exempt from sale under execution or other process issued on judgments rendered “against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.” The cases enumerated in each are cases of special trusts. The persons expressly designated as not coming within the homestead exemption of the Constitution of 1874 are persons who hold moneys exclusively for the benefit of others, and the relations between whom and those for whom they hold money are purely of confidence and trust; and the ‘other trustees of an express trust’ mentioned must mean the same class of trustees. The debts excepted are those contracted by them for such moneys.” Godfrey v. Herring, 74 Ark. 189; Dupont v. Beck, 81 Ind. 271.

There is no doubt but that appellee was the agent of the railway company, and in the performance of his duties collected certain sums of money for it, and failed to account for the amount sued for, which was paid by appellant as surety on his fidelity bond. He certainly does not come within the exception to the Constitution as one of the persons mentioned therein, and we do not think that his being such agent and collecting the moneys in the performance of his duties constituted him a trustee of an express trust, so far as such money was concerned, nor that it was due from him to the railroad company in a fiduciary capacity within the meaning of the Constitution which would render his homestead subject to the payment of a judgment therefor.

Such provision has reference only to the discharge of the duty of an express technical trust or such as is specifically mentioned in said article, and was not intended to, and does not, cover the relation of'an ordinary clerk, employee, agent or servant, who has confidence reposed in him for the collection of money, and constitute him a trustee of an express trust of such moneys when collected.

Neither could the giving of a bond for the faithful performance of the duties and payment of monies collected in such service change the relation to one of a technical trustee of an express trust. Barnard v. Sykes, 72 Miss. 297.

Appellant was not in a position to complain of the attempted disposition of any part of appellant’s homestead, whether by voluntary conveyance or otherwise, since it was not subject to the payment of its claim or judgment and, as to the homestead, there are no debts or creditors. Hinkle v. Broad-water, 73 Ark. 489; Ferguson v. Little Rock Trust Co., 99 Ark. 45.

The. judgment is affirmed.