Bogan v. Cleveland, 52 Ark. 101 (1889)

May 1889 · Arkansas Supreme Court

52 Ark. 101

Bogan v. Cleveland.

Homestead : Conveyance of not fraudulent,

The homestead of a debtor not being subject to the lien of a judgment, or to sale under execution, his conveyance of it, although executed with a bad motive, deprives his creditors of no right, and is therefore not fraudulent.

APPEAL from Washington Circuit Court in Chancery.

J. M. Pittman, Judge.

The conveyance which this suit seeks to avoid was executed in 1884. The Constitution of 1874, Article 9, Section 3, provides that a homestead “shall not be subject to the lien of any judgment, or decree of any court, orto sale under execution * * * * except such as may be rendered for the purchase money, or for specific liens, laborers’ or mechanics’ liens for improving the same, * * * * 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.”

A. M. Wilson, for appellant.

The sale was made in good faith, and from a good motive, and was not in fraud of creditors. The land was his homestead, and not subject to execution or sale for his debts. Act March, 1883, p. go.

C. R. Buckner, Sam H. West and B. R. Davidson, for appellees.

The judgment of appellees had become a lien on the land before Mrs. Bogan made a payment on it, if she ever did make one. Const., Art. g, sec. g ; 30 Ark., 111.

She was not an innocent purchaser; she had notice; and the proof shows the conveyance made for the express purpose of defrauding creditors. 23 Ark., 238; 4.3 id., 320; 32 id.r 251.

The act of March, 1887, has no application ; it applies only to execution sales. If the homestead right is not asserted in the manner prescribed by law, the right is waived. 33 Ark., ‡3‡; 28 id., 483.

Per Curiam.

HOME STEAD: Conveyance of. The appellees, judgment creditors of one Bryant, brought this suit, seeking to cancel for fraud a conveyance of land from him to the appellant. The land constituted the homestead of the debtor when the conveyance was made. It was not subject to the lien of a judgment, or to sale under execution. Creditors could not be injured by the conveyance. The debtor may have executed the conveyance with a bad motive, but it deprived his creditors of no right, and was therefore not fraudulent. Bump's Fraud Con., p. 245; Wait Fraud Con., sec. 71; Cammack v. Lovett, 44 Ark., 180.

The judgment is reversed and cause remanded with instructions to dismiss the bill.