Dunbar v. Alphin ( 1917 )

Hart, J.,

(after stating the facts). It is well settled in this State that conveyances made by the husband to his wife are looked upon with suspicion and scrutinized with care; when voluntary, they are prima facie fraudulent ; and when the debtor is insolvent they are presumed conclusively to be fraudulent as to existing creditors. This rule is so firmly established in this State that only a few cases in support of it need be cited. Driggs & Co.’s Bank v. Norwood, 50 Ark. 46; Brady v. Irby, 101 Ark. 573; Goodrich v. Bagnell Timber Co., 105 Ark. 90: Papan v. Nahay, 106 Ark. 230; and Simon v. Reynolds-Davis Gro. Co., 108 Ark. 164.

In the present case an attempt is made by Dunbar to show that he owed his wife at the time he executed the deed to her. He, himself, testified that he owed her $800 and executed the deed to her in payment of it. The deed itself recites a consideration of $800. He testified that right after they were married his wife let him have $100 in gold which his father-in-law had given her; that her father also gave her eleven head of hogs and two yearlings; that the rest of the money she let him have came from this stock and its increase. He admitted that he never gave his wife a note or other evidence of his indebtedness to her. He stated that she kept an account of it but no offer to introduce this account in evidence was made. He also admitted that he took possession of the cows and hogs and assessed them in his own name and paid taxes on them. The account in question was a running account extending over a period of nearly ten years. The record does not show the exact number of years Dunbar had been married, but it does show that they had six children. The deed in question was executed on February 7, 1911, and it was not filed for record until the afternoon of November 18, 1911, the day on which Alphin and his attorney pressed Dunbar for security for the debt. Dunbar says that he does not know why the deed was not recorded sooner. Mrs. Dunbar was not a witness in the case and no excuse is given for her not testifying. All these circumstances negative the idea that Dunbar conveyed the land in good faith to his wife in payment of a debt which he owed her. It was also shown by a brother and a tenant on the place that they heard Dunbar state to J. S: Alphin that he would have to let his wife have something to satisfy her and that Alphin replied that it would-be all right for him to do so; for he would have three hundred acres left and that would be worth from ten to fifteen thousand dollars. They said he spoke of conveying 120 acres to his wife. Alphin denies that he made any such statement to Dunbar. The tenant states that this conversation occurred right after Christmas; that he remembers it occurred at this time because he left for Louisiana in March, 1911. He stated that he did not remember any other part of the conversation. According to his testimony this conversation occurred early in 1911, -before the deed was executed. According to Dunbar’s brother, this conversation occurred only two or three weeks before Alphin sued Dunbar and attached his land. Besides this, Doctor Hilton testified that Dunbar talked with him about Alphin’s claim and thought that it was too much. He told him he wanted to tie up his land in some way until he could get a settlement out of Alphin. He stated that he had more land than he could claim as exempt and wanted to sell or mortgage a part of it in order to effect a settlement with Alphin. Alphin and Mahony both testified that when they pressed Dunbar for security in November, 1911, that he did not say anything about having conveyed the land to his wife, but on the other hand promised to give Alphin a mortgage on it to secure his indebtedness. Instead of doing as he promised them, his father-in-law went immediately and filed the deed which he had previously executed to his wife. He also claimed that his remaining property was worth much •more than the debt he owed to Alphin. In response to this claim it may be said that he conveyed this 120 acres to his wife for a consideration of $800 and that the land in question together with the other 160 acres owned by him which was subject to execution only brought $2,600 at the sale under attachment. After the attachment was levied upon his land he conveyed the 160 acres to his attorneys for their fee in defending the suits brought by Alphin,. If the lands had been worth $15,000, as claimed by Dunbar, it is to be presumed that they would not have permitted them to be sold for the sum of $2,600, or that Dunbar would have conveyed them to his attorneys for their fee and for no additional consideration. Dunbar’s wife had permitted him to use her property for a period of time extending over eight or ten years and to obtain credit on the faith of his owning it.

Under all the facts and circumstances adduced in evidence, we are of the opinion that the preponderance of the evidence shows that Dunbar was insolvent at the time he conveyed the property in question to his wife and that he conveyed it to her in order to defeat the plaintiff in the collection of his debt. Therefore, the chancellor was right in his conclusion of fact, and properly-granted the plaintiff relief prayed for in his complaint.

It follows that the decree must be affirmed.