Buchanan v. Williams

Smith, J. This' appeal is the closing chapter of the contest between appellant and appellee, B. L. Williams, over the office of sheriff and collector of Garland County for the term beginning the 31st day of October, 1906. In one form or another this is the fourth appeal in this cause. Williams v. Buchanan, 84 Ark. 404, 106 S. W. 202; Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024; Buchanan v. Parham, 95 Ark. 81, 128 S. W. 563. The election out of which this suit arose was held on the 3d day of September, 1906, and appellee Williams, who received a certificate of election, acted as sheriff until the final termination of the litigation involving the office, and turned the office of sheriff over to appellant on June 9, 1908; but appellee served as collector for the full two years, and made the collection of taxes for both the years 1906 and 1907. The circumstances under which he exercised-the duties of the office of collector, and the conditions under which he held it are discussed in connection with another feature of this case. This suit involves the fees and emoluments which accrued to the office of sheriff and collector for the term beginning October 31, 1906, and also to set aside certain conveyances of property, located in the city of Hot Springs, made by the appellee Williams of this property, and to have a lien declared in favor of the appellant on certain property, the legal title to which is now in his .wife, and also to have certain parties decreed to be trustees, holding the legal title to certain other lands in favor of the appellant. The record is a very voluminous one, and a great many questions, more or less collateral to the main issue, were inquired into, and, while this record has been very carefully considered, it would not be possible within the scope of any ordinary opinion to review and discuss all these questions, and we announce only in a general way our findings thereon. The chancellor made a finding that the fees of the sheriff’s office for the two years, and the net fees of the collector’s office for the year 1906, had been $4,783.20, and rendered a judgment in favor of appellant for this sum, but refused to charge appellee Williams with the collector’s fees for the year 1907. And the court also found that certain conveyances, made by Williams to his daughter, and son-in-law, and to his wife, who were defendants in the trial below, and are also appellees here, were not made in fraud of any creditors, either existing or subsequent; the finding.being that the conveyance to his son-in-law was in satisfaction of a valid subsisting indebtedness, and that, while the conveyances to his yfife were voluntarily made, he was not insolvent at the time they were made, and there was no intention to defraud any creditor, either existing or subsequent. Appellant appeals from the decree of the court pronounced upon the report of the master in adjusting the account for fees and emoluments, and claims that he should have had judgment for a very much larger sum than that which was rendered in his favor, and he appeals also from the action of the court in refusing .to uncover the property conveyed as aforesaid. Williams prosecutes a cross appeal from the court’s refusal to allow him certain credits upon his accounts as sheriff, which he says he should have. On May 15, 1903, Williams purchased from one Sarah Peters lots 6, 7 and 8 in block 59, and caused the same to be conveyed to his wife. On January 14, 1901, Williams conveyed to his daughter, B. A. Gentry, part of lots 5 and 6 of block 97 and lot 4 of block 46, and on April 15, 1902, caused the same property to be conveyed by his daughter to his wife, Martha E. Williams. The chancellor found, and Williams admits, that these conveyances to his wife were voluntary; but he insists that he was solvent at that time, and that he had the right to convey the property to his wife. On May 2, 1908, Williams conveyed to his son-in-law, W. W. Gentry, part of lots 4 and 5 in block 68 of the city of Hot Springs for the recited consideration of $17,000, but for the actual consideration of $22,000, of which amount the appellee claims that $17,000 was for a pre-existing account of long standing between himself and his son-in-law, and that the remaining $5,000 was paid in cash and credited at the time upon a note of said Williams held by the Arkansas National Bank. Williams admits that this conveyance divested him of the title to all of his visible property which might have been reached by execution; but he says the conveyqpce was made in payment of a valid indebtedness, due by him, and that the consideration paid not only represented the full value of the property, but that it was considerably more than the value of the property. The authorities differ as to whether or not in a case like this net fees or gross fees should be charged; but we need not consider that question here, for appellant says, “The chancellor in this case found as a matter of law, which, for the purpose of this case, we do not controvert, that Buchanan should recover from Williams the emoluments of the office, less the necessary expenses incurred by Williams in conducting the office. ’ ’ And upon that basis we can not say that the chancellor’s finding is contrary to the preponderance of the evidence; but, upon the contrary, we are of opinion that Williams was not charged with an excessive amount on account of the fees and emoluments of the office for which judgment was rendered. But we think he was in error in not charging Williams with collector’s fees for the last year of the term of office. The law requires that the collector shall file a bond as such with the clerk of the county court, prior to the first Monday in December preceding the tax collection, and at the time when this should have been done an appeal was pending from the judgment of the Garland Circuit Court, declaring Buchanan to have been elected, and he was prevented from assuming the duties of either sheriff or collector by virtue of this appeal. Williams failed to file this bond, and the facts in regard to this failure are detailed by B. H. Mooney, who testified as follows: That he had been clerk of Garland County since the 1st day of November, 1908, and was the deputy county clerk prior to that time; that Mr. Williams filed his bond for the year of 1907 on the 11th day of December at 9 a. m., and the bond was approved by the county court on the same day; that Mr. Williams did not file his bond as collector prior to the first Monday in December, and he made a certificate, as deputy clerk, certifying to the Governor that Williams had not filed his bond as collector, and the Governor thereafter immediately appointed Williams to fill the vacancy Caused by this failure ; that, while he did not remember the date of the certificate, he made it just as the clock struck 12 at night, and that Williams, and his attorney, and the county judge were present when it was made; that he had retired to his room when the county judge came, and he had a written order to him to issue the certificate, and that he got out of his bed, and went to the clerk’s office,' and issued the certificate. It appears to have been thoroughly understood that this certificate would be asked for, and that this had been discussed by the witness and the clerk, and the clerk had said that he would take any responsibility upon himself that might come up in the matter. Although the bond was not filed until the 11th, it was dated the 5th, and the affidavit' of one surety was made on the 6th, and the bond was for the sum of $250,-000. The principle of law which governs this transaction is one so just that it need only to be stated for its justness to be conceded, and which has been so long recognized that the memory of man runneth not to the contrary. It is that no man shall be permitted to profit by his own wrong. Here Williams was holding an office to which he must have known that he was not entitled, and a decision to that effect had already been rendered against him in the circuit court, and was afterward affirmed on his appeal, and it was only by virtue of this appeal that Buchanan was being kept out of office. Indeed, the proof shows that Buchanan filed a bond as collector in the required amount on November 27, 1907; but this act was unavailing on account of the pendency of the appeal. The purpose of the appellee in failing to file this bond was so manifest that we can not remain ignorant of it, and we will apply the maxim that “equity looks upon that as done which ought to be done, ’ ’ and accordingly we treat the bond as filed within the time limited by law, and we charge Williams with the commissions of the year 1907, less the same allowance for. the expenses of the collection, which the chancellor allowed for the previous year, and we will add that amount to the sum for which appellant should have judgment, together with the sum of $900, shown to have been received as commissions upon the collections of the liquor license for the last year of this term. And this increases by $4,314 the amount for which appellant should have judgment. We come next to the question of the validity of the conveyances by appellee Williams to his wife and daughter and son-in-law. Appellant very earnestly insists that the conveyance to Williams’s son-in-law, W. W. Gentry, was invalid for the reason that it divested him of all visible property, subject to execution, and Williams admits that this is a fact; but he says, and the chancellor found, that this conveyance was made in payment of a valid subsisting and outstanding obligation, due and owing by him. We will not undertake to decide that question for the reason that we have found that Williams expended of his own money upon blocks 97 and 46, and the other property, a sum of money in excess of the amount for which appellant is given judgment, and which excess we here decreé to constitute a lien thereon. As has been stated, these blocks, 97 and 46 were conveyed by Williams to his daughter and her husband on the 14th day of January, 1901, -and were by them conveyed to Martha E. Williams, appellee’s wife, on April 18, 1902. There were valuable improvements on these lots, which were destroyed by fire on February 25, 1905, and soon thereafter Williams began the construction of the valuable buildings now standing thereon, and on block 59, and completed them before the beginning of the term of office here • involved. One of the principal questions of fact involved in this case is the cost of a brick building erected upon this block 97. Williams testified that its cost was between $15,000 and $20,000, but that he had kept no special account of its cost, and suggested to appellant that he have some contractor figure on the cost of the building, and this was done, and the contractor testified that the building would be worth $24,578.95; but, after allowing the profit of 10 per cent, which a contractor usually figures upon, the building could have been erected at a cost of $22,324.50. Appellee finally said that the building was worth not exceeding $17,000; but under the circumstances we think he should be charged with his first highest estimate, and accordingly we find the value of the building to have been $20,000. Without going into the detail of the other buildings and money expended by him in improving the property he had conveyed to his wife, we announce our conclusion that' the evidence shows the value of the other buildings erected by him to have been as follows: Cost of cottage, $1,300; storehouse on block 68, $4,000; cost of house on block 59, $13,500; cost of residence and furnishings, $12,000— making a total of $50,800, which was expended by Williams upon the above described lots. This is a larger sum than he admits the buildings cost, or are worth; but we think a fair preponderance of the evidence warrants the fixing of the values at the sum named. Williams undertakes to show the various means by swhich he realized upon the various assets belonging to his wife, in the attempt to show that his own money did not go into these improvements. But, after consideration of all of this evidence, we. are of opinion that he has not accounted for more than the following amounts of money; Williams shows a deposit in the Arkansas National Bank of $12,058.11, hut, after considering the evidence, it is manifest that he takes credit for $10,000 of this money twice, and that $10,000 deposited in the Arkansas National Bank was the same money which he borrowed from the Security Bank; $17,200 from the insurance company; $4,100 from the sale of property on Benton street; $1,500 from the sale of a wholesale feed business which Williams had been conducting in his wife’s name; and $1,000 from some race track property. Thus it appears that the money which he accounts for as belonging to his wife did not exceed $36,000, and the amount which he expended on the improvements exceeds $50,000, leaving a sum considerably in excess of the amount for which we have rendered judgment in appellant’s favor. Appellee Williams claims that there should he credited in addition about $5,000, received from the rents of this property, which was applied on the cost of buildings; hut we do not think that he has made such a showing as to the amount of the rents, nor as to their use as to entitle him to have them credited in this account. It is true that he collected rents and placed them to his credit at the Arkansas National Bank; but we think that the above statement of receipts and disbursements of his wife’s money by him is a liberal one to him, under all the facts and circumstances in proof. Williams admits his wife had no separate bank account prior to the fire in February, 1905, and thereafter she had two accounts, the first of which was opened 10-24-1905, and the total deposits of that account aggregated $15,083.11, and the second account was opened 10-21-08, and closed 1-6-1910, and the deposits amounted to $2,853,83, making a total of deposits of $17,936.94. In addition, a considerable part of the $17,200 insurance money was received from the buildings on the lots claimed by Mrs. Williams, but the exact amount so received is not entirely clear; but all of the insurance money was deposited by Williams to the credit of his account as collector, and, while some of it went into the construction of the new buildings, it is equally as certain from Williams’s own statement that all of it was not so used. The burden was upon him to show the application of his wife’s money to the improvement of her property, and this he has not done, except as to a part of it. We can not know from the record what proportion of the cost of any building, including the residence, was paid with Mrs. Williams’s money. His home was probably the last building erected, although the business houses in block 97 were not completed when the residence was begun, and there were a number of checks offered in evidence which Williams could only say were used on his buildings in block 97, but could not say on which one, and in fact he made no attempt to show where any particular money was spent. Appellee contents himself with the attempt to show that he received from all sources a sum of money belonging to his wife which equaled the cost of the buildings on her property, without undertaking to show where any particular money was spent; but as shown above we do not think the proof establishes even that fact. A number of cases in our reports discuss and decide the question of the validity of conveyances of insolvent debtors, both as to existing and subsequent creditors ; but, the rule is nowhere better stated than by Judge Riddick in the opinion written by him in the case of May v. State National Bank, 59 Ark. 614, 28 S. W. 431. In this case the decisions of our court and those of a number of other States are reviewed, and the conflict which appears to exist in the decisions is pointed out. It was there said: ‘ ‘ The rule that, in order for a subsequent creditor to impeach a voluntary conveyance by a debtor prior to the creation of his debt, he must show an actual intent to defraud has been repeated and followed so often by this court that it has become to a certain extent a rule of property which should not be overturned. But, considering these decisions in connection with the statute (Kirby’s Dig., § 3658), we hold that a voluntary conveyance made with an actual intent to cheat, hinder, or defraud either existing or subsequent creditors is void as to the creditors, both prior and subsequent.” The facts of the May case, in which the above rule was announced, were that one Neal was heavily in debt, and in an embarrassed financial condition, owing a large sum of money, with assets not greatly exceeding his indebtedness, and he made a voluntary conveyance to his nephew and sister of lands embracing a valuable portion of his estate. Deducting the property thus conveyed, he was left practically insolvent. . After the conveyances were made, he still used the property as his own, placing valuable and extensive improvements upon it. At the time these conveyances were made he was engaged in large business enterprises, and continued in business, with his debts steadily increasing down to the time of his failure, which occurred about two years after the conveyances were made, and it was there said that those conveyances were void, both as to prior and subsequent creditors We adhere to the rule announced in that case, and, when applied to the facts of this case, as we understand them to be, we think the expenditure of Williams’s money upon the property which he had conveyed to his wife, is such a fraud against appellant as a subsequent creditor that he is entitled to have the amount due him by Williams charged as a lien against the property conveyed by Williams to his wife and improved by him for her. Williams kept two bank accounts, one in the name of his wife, which was twice opened and closed, as above stated, and the other in his name as collector, and he appears to have cheeked against these accounts indiscriminately, confident that his wife would ask no accounting, and that he could and would make good his official accounts when called upon to do so. His wife appeared to have had no control or management of any of the property which he said she owned. He bought and improved property for her, requiring the outlay of large sums of money, and made large improvements which he says were hers, as freely as if they had been his own. It does appear from the evidence that he talked with her about the control, which he says he exercised of her money and property; but these conversations appear to have been only such as any man would have had with a good wife who was interested in her husband and bis affairs. Although he was the collector of the taxes, the property appears upon the tax books in his own name, and the taxes were paid by him in his own name. In the construction of his expensive building in block .97, he had his own name, E. L. Williams, placed upon the cornice in large letters. He appeared to have had a practice, which had grown to be a habit, of indorsing paper, and the amount of the indorsement appeared to have cut no figure, if a friend was accommodated; indeed, he seems to have been more concerned about accommodating his friends than he did about saving his money, and many of these friends obligingly permitted him to pay their debts, contracted upon his indorsement. He appears to have been deeply engrossed in politics, and very intent on winning, and that without regard to the cost, and this may account for his constant liability upon his indorsements. From his own statement, it is apparent that he never knew the number of the indorsements, nor the extent of his actual or probable liability thereon. He was upon the official bond of his predecessor in office, who was elected in 1896, and who defaulted in quite a large sum, and whose sureties were exonerated from liability by a special act of the G-eneral Assembly, approved March 29,1901. A study of appellee’s evidence leads irresistibly to the conclusion that, at a time when he was possibly solvent, and before appellant became a candidate against him for office, appellee must have begun to prepare for the breakers which his loose financial methods would necessarily develop, and he commenced putting property away beyond the reach of any creditor whom he might not care to pay. He states himself that he was hard up at the time of his son’s death in March, 1899, when he borrowed the first money from Gentry, his son-in-law, and this indebtedness to his son-in-law constantly grew larger until, at the time of the conveyance to him of what was left of his estate, he was indebted to him in the sum of $17,000, and Gentry says only $12,600 of this was principal, and the remainder was interest. It appears that, while he may have intended to meet his obligations generally, he proposed to be in a position to use his discretion and consult his own pleasure in doing so, and he did not want to be in a position to be coerced, and it is unmistakable that his intention was that appellant should not be paid at all. At the’hearing before the master, when it was sought to ascertain what the net receipts of the office were, a deputy sheriff and the bookkeeper testified that the cashbooks had disappeared about the time that Williams went out of office, and the ledger also disappeared, and had not since been found, and the matter of profits of the office was left to some extent a matter of conjecture. Appellee did not turn over to appellant any book containing the accounts of the sheriff’s office, and this circumstance is in keeping with his general course of conduct with reference to the appellant’s rights. It is true that, although Williams freely lent his credit, he sometimes took ample security to protect himself in his indorsements, yet it was not his practice to do so, and it appears that at one time during the year 1906 he was indebted to the Arkansas National Bank, either actually for money loaned him, or potentially upon his indorsements, for about $35,000, and, while this was the maximum amount he ever owed that bank, he was always under considerable liability to that bank. It is true that the cashier of the bank testified that they were never uneasy about the money due them; but this faith may have been inspired by the use which Williams was making of the property under his control. The proof shows that, upon making his settlement as collector of the public revenues for the year 1906, it became necessary for him to borrow $9,300, and while he appears to have had no trouble in raising this money, it shows the reckless manner in which his financial affairs were conducted. By his own statement he executed a number of mortgages upon his city property during the time he held the title, and, while these mortgages were paid, it shows that he was always more or less indebted. He seeks to establish the good faith of his conveyances to his son-in-law by showing that at the time of that conveyance he was justly indebted to him in the sum of $17,000, and by his own statement a portion of this indebtedness would have been barred by the statute of limitations, had he cared to exercise the privilege of pleading it, and this indebtedness had begun as a comparatively small sum, constantly growing larger until finally he could settle it only by conveying all that remained of his visible property. Williams undertakes to make an explanation of the various matters here discussed, and it might be said that as to some of them he had successfully done so, if they stood alone; but, when considered together in their relation to each other, the conviction grows, until it becomes a certainty, that appellant is entitled to have satisfaction of his debt, and that it is our duty to declare a lien upon the property of Mrs. Williams for the amount of appellant’s debt. It does not often happen that the proof of fraud amounts to a demonstration, for it is usually accomplished under such circumstances that it may be concealed; in fact the very purpose of its commission requires its concealment, and it is only by inference and deduction that we may know of its existence, but we think the proof in this case is sufficient for us to know of its presence here. There was a garnishment proceeding, which was consolidated with this cause, which was finally dismissed at appellant’s cost. One R. S. Wood had executed a note, with Williams as indorser, dated January 13, 1905, in favor of William McGruigan, and suit was brought upon this note. The appellant claimed the note was paid by Williams, and garnished Wood, for whose benefit it had been paid. The chancellor found that, although Williams had paid the note, it was paid with money belonging to his wife, and furnished to him by her for that purpose, and we will not disturb that finding as being contrary to the clear preponderance of the evidence. The decree in this cause will therefore be reversed, with directions to the chancellor to enter a decree in favor of appellant for the sum of $9,097.20, with interest thereon at the rate of 6 per cent, from the 27th of October, 1911, and to adjudge the same to be a lien on said blocks 97 and 46, and to order the same sold within the time and manner and upon the terms fixed by the court, if not paid by said Williams. And all costs of this cause are assessed against appellee Williams, except the costs of the garnishment proceeding, which are assessed against appellant.