| Ark. | Nov 5, 1906
This is a suit in equity by J. A. Smith and other creditors of John J. and William Sumpter to set aside certain conveyances of land made by them and to subject the lands to the payment of the judgments which the respective plaintiffs had recovered against these defendants.
The land in controversy originally belonged to James Sumpter, the father of John J. and William Sumpter. In September, 1861, he conveyed it to his son, William Sumpter. This deed recites a consideration of seven hundred dollars, but William Sumpter testified that he paid nothing for it, and that his father, in apprehension of danger of being slain during the war then raging, conveyed it to him as his eldest child to be held in trust for the benefit of the children of his father, including, besides himself and John J. Sumpter, two sisters, who are parties to this action.
Counsel for the creditors contend that this was not a valid trust under our statute, and that the land must be treated as the property of William Sumpter. It is true that this parol trust can not be enforced against William Sumpter, the grantee named in the deed, yet there is nothing either in law or equity that will prevent him from executing the trust if he chooses to-do so. While the law for good and sufficient reasons refuses to permit an express trust to be added to or engrafted upon, a deed absolute in form by parol evidence alone, yet when property is conveyed by a grantor by absolute deed with directions that it be held in trust for some lawful purpose, there is a moral obligation on the part of the grantee to perform his trust or surrender the property, though the law will not -compel .him. If, however, he elects to do that which in good conscience he ought to do, the courts will protect him in so doing, and, so far as -possible, will -protect the beneficiaries in the executed trust. A conveyance of the trust property by the trustee to the beneficiary under such circumstances would not be a fraud upon his creditors, -for the creditors have no legal right to ask -h-im to hold property to which he has no moral right. 28 Am. & Eng. Ene. Eaw, 877; First National Bank of Appleton v. Bertschy, 52 Wis. 451.
But, while it is true that the evidence shows that William Sumpter never at any time claimed more than an heir’s interest in this land, and that he has always recognized the interest of his brother -and sisters therein, yet, as an express trust can pot be added to an absolute deed by parol evidence, it is necessary to make out a case for relief against William Sumpter before the conveyance of this land made by him can be set aside.
The judgments held by the plaintiffs in this case were rendered not only against John J. Sumpter but against William Sumpter also. In order to entitle plaintiff to come into a court of equity to set aside a conveyance made by William Sumpter, it must be shown that plaintiffs have exhausted their legal remedies against him. But there is nQthing to show insolvency of William Sumpter, beyond the fact that there are several unsatisfied judgments against him. It is not shown that any execution has ever been issued on either of these judgments, or that any effort has been made to collect or enforce them, and the mere fact that there are unsatisfied judgments against a defendant is not, under our decisions, sufficient to show that he is insolvent. Euclid Ave. Nat. Bank v. Judkins, 66 Ark. 486" date_filed="1899-05-27" court="Ark." case_name="Euclid Avenue National Bank v. Judkins">66 Ark. 486; Davis v. Insurance Co., 63 Ark. 412" date_filed="1897-01-30" court="Ark." case_name="Davis v. Arkansas Fire Insurance">63 Ark. 412; Clark v. Anthony, 31 Ark. 546" date_filed="1876-11-15" court="Ark." case_name="Clark v. Anthony">31 Ark. 546.
There arencases that hold that a creditor may go into equity to set aside a fraudulent conveyance upon showing that he has a judgment which is a lien on the land conveyed, even though no execution has been issued on the judgment. Hunt v. Wiener, 39 Ark. 70" date_filed="1882-11-15" court="Ark." case_name="Hunt v. Weiner">39 Ark. 70. But the judgments set up by the plaintiff in this action were all rendered more than three years before this action was commenced. It is not shown that they were ever revived, and under the statute the lien of the judgment expired before this action was commenced. Plaintiffs then have no lien on the land which equity can enforce against a defendant not shown to be insolvent.
For these reasons we are unable to say that the chancellor erred in dismissing the complaint for want of equity.
Judgment affirmed.