Papan v. Nahay

Smith, J., (after stating the facts). The court was in error in saying that appellant came not but wholly made default, for the very recitals of the decree itself shows the existence of an answer in the files. But from all the recitals of the decree, it appears that what the court did find was that appellant was in default in the trial of the case. The answer had been filed for more than five months at the time of the rendition of the original decree ■and during that' time appellant had taken no proof to support the allegations of her- answer. As has been stated no point is made about the retirement of her attor- - ney from the case. This was done in open court and in her motion to set aside the original decree she does not complain of any neglect or misconduct upon his part. The allegation that she was not advised of the term of the court is without merit, because the terms of court are fixed by law and she is charged with notice of the dates upon which the court did convene, and, besides, the summons upon her notified her when she was required to answer under the law. It is not contended that she was misled or deceived by the appellee or any one acting for him. In fact it affirmatively appears that she knew that she would be required to make defense to the suit, because she had employed an attorney for that purpose. The decree recites, and its recitals are not questioned, that the cause came on for trial and that the plaintiff there was present, ready for trial and the cause was heard by the court upon the record there then produced, and it remains to be seen whether or not upon the record as it was presented to the court an erroneous decree was entered. To determine this question it will be necessary to consider the character of the proceedings together with the allegations of the complaint and answer. We are of the opinion, under the state of the record, that the burden of proof was upon the defendant, if the appellant in his suit for slander is to be regarded as a creditor within the protection of the statutes against fraudulent conveyances. And in 20 Cyc., at page 430, the rule is announced as follows: “The well-nigh universal rule is that claims for damages arising from torts are within the protection of the statutes against fraudulent conveyances. Thus a person having a cause.' of .action for libel or slander (and other torts there named), are regarded as creditors and within the meaning of such statutes.” Numerous cases are cited to and do support the text. The proof, which the record recites the court had before it, affirmatively shows the insolvency of the said John A. Papan. The execution which was offered in evidence had been returned nulla bona. Moreover, the very deeds which it was sought to set aside, contained the recital that the said Papan was there conveying all of his property, both real and personal, and they are the deeds which appellant alleged in her answer were made in good faith. Their necessary effect was to render Papan insolvent. This being true, and the case having been reached regularly for trial, the question before the court was, should the cause be dismissed for the want of prosecution or was the burden upon the defendant to establish her defense; in other words, to determine which of the parties were in default. Many cases have discussed the question of the conveyance by embarrassed debtors to members of their own household; a number of them being decisions of our own court upon that subject and the rule appears to be that announced by Chief Justice Hill in the case of Wilkes v. Vaughn, 73 Ark. 174, as follows: “It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion, and scrutinized with care, and when they are voluntary they are prima facie fraudulent and when embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.” In the case of McConnell v. Hopkins, 86 Ark. 225, in a decision by Mr. Justice Wood, the above case was quoted with approval and it was said that the conveyance there considered was a voluntary one and executed under circumstances which cast grave suspicion upon the good faith of the transaction and the burden was therefore upon the grantee to show that the conveyance was not executed for a fraudulent purpose. So in this case, the conveyance was purely voluntary and the conveyance to and from the defendant Smith was for the purpose of vesting the title in the appellant; the conveyance rendered Papan insolvent and was executed after the institution of a suit against him for a large sum, claimed as damages, which he did not defend and which resulted in a judgment against him for $1,000; under these circumstances the burden of proving the good faith of this transaction was upon appellant and she was in default in not having done so and this is what was evidently meant by the court in the recital that she had made default. In other words, this was a judgment upon the pleadings. McConnell v. Hopkins, 86 Ark. 230; Wilkes v. Vaughan, 73 Ark. 174; Hershy v. Latham, 46 Ark. 542; Goodrich et al. v. Bagnell Timber Co., 83 Ark. 547; Leonard v. Flood, 68 Ark. 62; Carmack v. Lovett, 44 Ark. 180; Gilbert v. Cook, 30 Ark. 417; Brady v. Irby, 101 Ark. 573; 142 S. W. 1124; James v. Mallory, 76 Ark. 509; Rudy v. Austin, 56 Ark. 80; Briggs v. Norwood, 50 Ark. 46; Campbell v. Jones, 52 Ark. 493; Stix v. Chaytor, 55 Ark. 116; May v. State Nat. Bank, 59 Ark. 614; Reeves v. Sherwood, 45 Ark. 520; 20 Cyc. p. 445, and the cases there cited. Affirmed.