90 Ark. 44 | Ark. | 1909
(after stating the facts.) The court found that “all the service which was had upon the said -Edgar C. Martin was by summons by certified copy of the complaint attached, and made upon him in the State of Illinois, where he then resided, that he had no guardian in the State of Arkansas, and that his regular statutory guardian in the State of Illinois employed an attorney in said cause who filed the answer therein.” 'This service was in compliance with the requirements of section 6053 of Kirby’s Digest, and when service is had in this way “it shall be deemed an actual service of the summons.” Section 6054, Kirby’s Digest. Therefore, as no personal judgment was rendered against appellant in the suit to set aside the deed, and as he was not constructively summoned, the bond required to be filed by section 6254, Kirby’s Digest, in favor of ■parties constructively summoned was not necessary. See section 6264, Kirby’s Digest. The court therefore had jurisdiction ■of appellant in the suit to cancel his deed.
The court accepted the defense that was made for him by his guardian appointed in a foreign State where the appellant resided. The attorney employed by his guardian filed an answer denying all the material allegations of the complaint, and the court doubtless considered it a bona fide and full defense, as much so as could have been made by a guardian appointed by the court especially to defend for him. As the authority of foreign guardians is generally limited, in the absence of a statute, to the jurisdiction that appointed them, the action of the court in allowing the defense to be made by the foreign guardian did not conform to the letter of section 6023 of Kirby’s Digest. See Woerner on Guardianship, § § 28, 93; Schouler, Dom. Rel. § ■§ 327, 329; Woodworth v. Spring, 4 Allen 324; Taylor v. Barron, 35 N. H. 496; Wharton, Conflict of Laws, § 260. By this section the law guards with jealous eye the rights of an infant defendant. But the above procedure was in accord with the spirit of the statute, not prejudicial at all to appellant, and at most but an irregularity that, even on appeal, would not have rendered the judgment of the chancery court void. See Boyd v. Roane, 49 Ark. 414.
Appellant is seeking to vacate the decree under section 6248 of Kirby’s Digest, which is as follows:
“It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age, but in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.”
The statute applies in cases of this kind. Blanton v. Rose, 70 Ark. 415. But, before appellant can succeed under the authority of the above section, he must “show cause against such judgment.” Errors in the judgment must be “shown” (section 4431, subdiv. 8), under the procedure prescribed by section 4433, and according to the requirements of section 4434. Section 4433 provides that the complaint shall set forth “the grounds to vacate or modify the judgment, and the defense to the acT tion if the party applying was defendant.” Section 4434 provides: “A judgment shall not.be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment was rendered.”
In Boyd v. Roane, 49 Ark. 397, the court, commenting upon these statutes at page 417, said: “But the first decree is valid, and under it Boyd obtained his title, and the infant’s only claim for vacating the second decree is for alleged errors, in procedure. We are by no means sure that there is any reversible error in the proceedings. But, admitting that there is, the statute provides that the complaint in a proceeding by an infant to vacate a judgment shall ‘set forth the grounds to vacate or modify it, and the defense to the action,’ and enacts that a ‘judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action.’ The Supreme Court of Kentucky in construing a provision of the statute identical with that under which the infant here is proceeding, say the errors contemplated by the statute ‘are such as affect the substantial rights of the infants, and to obtain relief they must show that actual injustice has been done them.’ ” Richards v. Richards, 10 Bush 617; Pierson v. Vance, 85 Ark. 272.
Now, the decree of the court setting aside appellant’s deed was based on a finding that his father, W. H. Martin, was insolvent at the time he made it, and that he executed it for the purpose of defrauding his creditors. The court found that W. H. Martin was insolvent upon the testimony of a witness who said that he was “acquainted with the property and financial standing of W. H. Martin at the time he conveyed the land to his sons, and knew that W. H. Martin could not then pay his indebtedness with what property he had in his own name.” This, with the other evidence we have set forth in the statement of facts showing W. H. Martin’s financial embarrassment, fully warranted the court in finding that W. H. Martin was insolvent, and that he executed the deed to his sons for the purpose of defraudinghis creditors. It is a significant circumstance evidencing such intention that the deed to his son was executed four days after the issuance of the execution on the judgment. A debtor who is both able and willing to pay does not wait for the goad of the law, nor run to cover when it is applied.
The fact that W. H. Martin, while greatly embarrassed financially, made a voluntary conveyance of lands to his children, without which his debts could not be paid, is conclusive evidence of fraud. And it is incompatible with honest purpose that a man, after having conveyed his land to his children, should convey the same land by mortgage to other persons for large sums of money. Such conduct-is conclusive evidence of a scheme to defraud creditors.
To meet the burden of showing that the decree of the chancery court cancelling the deed was erroneous, appellant adduced evidence tending to show that his father’s estate was solvent some four years after the deed to appellant was executed. But this evidence was “wide of the mark.” It did not show that W. H. Martin was solvent at the time the deed to appellant was executed, and did riot even tend to show that W. H. Martin in making the deed to appellant was not intending to defraud his creditors.
Learned counsel suggest that the defense made for the minor in the suit to set aside his deed was “purely perfunctory.” If so, there was all the greater reason that, in the present suit, when the law gave him another opportunity, and when he was represented by able counsel, he should have made some proof that his father was solvent at the time the deed was executed. To avoid the decree that was imperative.
The'court did not find that W. H. Martin was solvent at the time of the execution of the conveyance, as counsel aver. But, if it had, there would be no evidence to sustain such finding.
The decree dismissing the complaint for want of equity is correct.
Affirm.
