JAN. TERM, 1857. SLOCOMB v. BLACKBURN. the execution without a sale,.the levy will not continue to be a lien as against intervening rights of other persons; and against other creditors is regarded as dormant and fraudulent. A judgment creditor issued executi Ast which was levied upon slaves; the defendant gave a delivery bond (under the act of 29th March, 1839), which was returned forfeited, but no judgment was taken on the bond: no further process was sued out upon the judgment for more than five year , when-the plain ill causedfi. fa. t bo issued - taking na notice of the levy previously returned: after the lapse of mo, e than seven years from the time of the return of the delivery bond forfeited, and after the death of the defendant, the Plaintiff files a hill in equity, against a party in possession under claim of title, without showing diligence or sufficient excuse for the delay, to enforce a specific lien upon the slaves under the original execution and levy: Held, that the claim to a specific lien was not well founded. Q,wre. Could a specific lien upon personal property, created by the levy of an execu-f. thn in the lifetime of the judgment debtor, [e310 be enfoiced by a:court of equity, after his death, without administration, or regard to our probate court system? Under the provisions of our probate system, upon the death of any person, his estate passes into the hands of the law, to be administeted for the benefit of creditors, etc., according to their priorities; and no one creditor has a right to come int a court of equity to set aside conveyances of property, made by the deceased debtor, as fraudulent an-i void as ag dust creditors, and subject Foch property to the payment of his own debt, without regard to our pr.fbate systcm, or the rights of other creditors. Appeal from the Pulaski Circuit Court in Ciancery. H ON. WM. H. FEIL 0, Circuit Judge. This cause was argued at length by the counsel on both sides upon points made as to the validity of the deeds of settlement. Trapnall, for the appellants. Pike & Cummins, and Watkins & Gallagher, for the appellees. SLOCOMB, RICHARDS & CO. ENGLISH, C. J. On the 21s;, of V.
March, 1848, Slocomb, Richards & Co., BLACKBURN ET AL. filed a bill in the Pulaski circuit Where personal property is levied upon, and, by court, against Samuel D. Black-irection of the plaintiff, the sheriff permits it to burn, Eliza Marshall, widow; and sin in possession of the defendant, and returns James D. B., and John G. Marshall,
SLOCOMB V. BLACKBURN. VOL. 18. 311*] *infant heirs of Gilbert Marshall, elusion of the trial of the right of prop-deceased. The case made by the orig- erty, and the slaves were not sold for inal bill is substantially as follows: the want of time. On the 21st March, 1837, Gilbert Mar-On the 2d of October, 1840, a van-shall and David Titsworth, who were dttioni was issued on each of then engaged as partners in the mer- the judgments, to the sheriff of Scott cantile business, in Scott county, pur- county, commanding him to sell the chased of the complainants at New slaves Sam and Nathan, etc., etc., re-Orleans, a bill of goods, for which they *turnable to the March term, [*312 made their note for $1,372.57, due at 1841. The sheriff returned that he had twelve months, etc. On the 14th April, surrendered the possession of the slaves, 1838, Marshall purchased another bill on the execution of a delivery bond by of goods of complainants, for which he Marshall, etc., which had been forgave his individual note for $370.52, feited, etc. payable at twelve months. The bill further alleges that shortly On the 1st July, 1839, the complain- after the delivery bond was given, the ants commenced suit, in the Sco.t cir- slaves were removed from Scott coun-cuit court, against Marshall and Tits- ty by Sam'l D. Blackburn, and com-worth on the first note, and against plainants were not aware what had Marshall on the second note: and on become of them, until some time in the the 1st of October of the same year, ob- year 1846, when they were informed tained judgments in both suits, etc. that they were on a farm of Black-On the 28th of August, 1810, a fi. fa. burn's, in Pulaski county, about was issued on each of said judgments to twenty miles above the city of the sheriff of Scott county, returnable Little Rook. Whereupon, on the to the September term following: 14th Sept., 1846, complainants caused which were levied on two slaves, Sam a fi. fa. to be issued on each of and Nathan, and some lots and land, said judgments to the sheriff of said In and near Boonville, as the property county, returnable to the 0 tober term of Gilbert Marshall. following. That the slaves were kept In the pleat' time, the bill alleges, out. of the way of the sheriff, and Gilbert Marshall, on the 20th Dee., though he made diligent search for 1858, being deeply in debt and pressed them, being directed so to do, yet they by his creditors, and about to enter in- could not be found, and the executions to marriage with Eliza Blackburn, con- were returned nulta bona, etc. veyed to Samuel D. Blackburn, for her Afterwards, Gilbert Marshall de-use, all his personal and real estate, parted this life intestate and insolvent leaving nothing to pay his debts, etc. and there was no administration upon In which conveyance was embraced his estate. In the year 1842, he re-the property levied ou as above. Moved from Scott to Pulaski county, After the levy was made, Blackburn, and lived from that time until his as trustee in the deed of settlement, death near the farm of Blackburn, anti claimed the property; the sheriff sum- had the use or possession of the slaves moned a jury to try the right of prop- Sam and Nathan. After his death,they erty, and they rendered a verdict that were in possession of Blackburn the slaves were subject to the execu-Titsworth had also died insolvent. tions. The real property levied upon The bill charges that the deed of set-was sold by the sheriff for a small sum; tletnent was nn.de to hinder, delay and but the time for selling under the ex- defraud the creditors of Gilbert Mar-ecutions had expired before the con- shall, and waOherefore void. That
JAN. TERM, 1857. SLOCOMB V. BLACKBURN. 'the levy of said writs of fi. fa. op the shall, since when she had controlled it. slaves Sam and Nathan had never She denies that the levies were, or con-been disposed of: and still remained a tinued liens on the slaves, etc : specific lien on them; and that they On the 9th of June, 1849, the com-were taken from Scott county, by plainants filed an amended bill, in Blackburn, as above stated, with a full which they set out more fully than in knowledge of the fact, and for the pur-their original bill, the provisions of the pose of defeating the lien. deed of the 20th December, 1838 : and The bill prays for a decree subjecting also set out and exhibit another deed the slaves Sam and Nathan to the lien, of settlement made by Marshall on the and in satisfaction of the judgments. 27th of September, 1839, after the mar-Mrs. Marshall, in her answer, sets riage, bat purporting to have been exe-out the marriage contract entered into cuted in pursuance of the ante-nuptial between Gilbert Marshall and herself contract, in which he conveys to Black_ (then Eliza Blackburn), and ex-burn, as trustee, for th:?, use of Mrs. hibits the deed 01 settlement of Marshall for life, several other slaves 20th December, 1.838, referred to in and personal property, remainder in the bill—by which, in pursuance of t he common to the two children of Mar-313*] *treaty of marriage, and in con-shall named in the first deed, and to sideration thereof, Marshall conveyed any children of the marriage, etc. This to Samuel D. Blackburn, as trustee, for deed, as-well as the first, is charged to the use of said Eliza during her life have been made in fraud of the rights etc., the slaves Sam and Nathan, and of Marshall's creditors; and the bill two other negroes, and a tract of land, prays that both deeds may be decreed etc., remainder in common to Mary J. to be null and void, and the property .and William H., children of Marshall embraced therein sold for the satisfac-by a former marriage, and to any chil-tion of complainants' judgments, etc. dren that he might have by the said *Blackburn, the trustee, an- [a314 Eliza, share and share alike. swered the original and amended bill Mrs. Marshall furthermore states in at length, but we deem it unnecessary her answer that when the deed was ex-here to state the substance of the an-ecuted, nor at any time previous to her swer. By agreement., the answer of marriage with Marshall, had she any Mrs. Marshall to the original bill was knowledge that he was indebted to taken as an answer to the amended bill. complainants, or any other person. in A formal answer was also interposed view of his advanced age, she made it a for Mary J., and John G. Marshall, by condition of the marriage, that he their guardian ad litem. should settle upon her, and any chil-On the 23d January, 1852, complain-dren that she might have by him, such ants filed a supplemental bill, stating property as would secure to them a that Mrs. Marshall had intermarried comfortable support. She denies all with one Blunt, and making him a fraud and intention to defeat the claims party. That in April, 1851, she con-of the creditors of Marshall on her part, veyed all her interest in the property ete. Marshall died in October, 1847. embraced in the two deeds, to John G. His son, 'William H., mentioned in the and Mary J. Marshall, who were enti--deed, died before his father. But one tled to the remainder,after the termina-of the issue of the marriage, the de-tion of her life estate, under the pro-fendant John G. was living. The trust-visions of the deeds. Prayer as in the ee always had possession and control original and amended bills. ,of the property until the death of Mar-Mrs. Blunt answered the supplement-
SLOCOMB V. BLACKBURN. VOL. 18 al bill, admitting that she had made a the right to proceed by motion, or suit,- voluntary conveyance of her interest in for judgment on the forfeited bond, or the property, as alleged, etc. to sue out further process of execution On the 9th of December, 1852, her upon the original judgments, as they death was suggested and admitted. might elect. Id. 585. The cause was finally heard in June, The record fails to show that appel-1853, on the pleadings and evidence, lants obtained any judgment upon the and the bill dismissed for want of eq- forfeited bond, and therefore it must uity. Complainants appealed to this be supposed that the original judg-court; after which, Sam. W. Williams, inents continued in force. But after having intermarried with Mary J. Mar- the return of the bond forfeited, uo shall, was made a party. further process appears to have been The life interest of Mrs. Marshall (or issued, until the 14th of September, Blunt) in the property in controversy, 1846, a period or more than five years, having terminated, the contest is now when aft.fa. was issued upon each of between the appellants, as creditors of the judgments to the sheriff of Pu-Gilbert Marshall, deceased, and his laski. only surviving children, Mrs. Williams The act of 20th March, 1839 (Dig ., eh. and John G. Marshall, who now claim 67, see. 38), provides that "if the prop-absolute title to the entire property, erty be not delivered according to the under the provisions of the deeds of condition of the bond, the levy shall settlement, etc. remain a lien upon the property taken In the original bill, the appellant for the satisfaction of the judgment insist that they acquired a specific lien into whose possession soever the same on the slaves Sam and Nathan, during may have passed." And sec. 39, of the the lifetime of Marshall, by virtue of same act, declares that "the officer may the execution levies; that the levies re- seize the same property wherever it mained undisposed of, and the lien con- may be found, or any other property tinned and was in force after the death of the defendant subject to the execu-of Marshall, and when the bill tion, and sell the same, if personal was filed ; and that therefore they property, on five days' notice, to satis-had Lhe right to proceed by bill in fy the execution." But how long the equity to enforce the lien, and sub- levy shall remain a lien upon the prop-ject the slaves to the satisfaction of erty, the act does not provide. The 315*] *their judgments at law, with- statute being silent as to this, the dura-out administration upon the estate of tion of the lien must be $letermined by Marshall, and regardless of the claims reference to such analogous principles of other creditors. of law as may be applicable. Did the lien of the levies continue in Our law does not favor the contin-force as insisted? uation of such liens for an unreason-The delivery bond given by Marshall able time. The lien of a judgment was returned forfeited, at the March upon real estate is limited to three term, 1841. The bond was executed years. In State Bank v. Etter, 15 Ark. under the provisions of the act of 20th 269, an execution issued from Pulaski March, 1839 (Dig., ch. 67, sec. 37 to 42), to the sheriff of Hempstead, was levied and its forfeiture did not operate as a on land, and returned without sale, by judgment, or merger of the original order of the *plaintiff. The de- [*316 judgment, as under the law now in fendant died, and his administrator force. Biscoe et al. v. Sandefur, ad. et afterwards bold the land. The plaint-al.,14 Ark. R. 568. The plaintiffs had iff afterwards attempted to enforce the
JAN. TERM, 1857. SLOCOMB v. BLACKBURN. lien of the levy by ven. ex., and this then they caused fi. fa.'a to be issued, court held that the plaintiff having taking no notice of the levies previous-directed the return of the execution ly returned. Nor did they file this bill without sale after the levy, and taken to enforce their alleged bill in equity, no steps to revive the judgment against until seven years from the time the the administrator, and sued out no pro-bond was returned forfeited; a period cess for the satisfaction of the judg-sufficiently long to bar an action at law ment for two years and a half after the 'for the slaves, had they ac- [4'317 levy, and near fifteen months after the quired a title to them, instead of a lien land had been sold by the admiuis-upon them, by the levies, etc. Undei tor, the lien of the levy was lost. The such delay, we know of no principk court remarked that as to judgments: upon which the lien could be held to "The statute has limited the contin-continue so long as against other cred-uance of the lien, but with regard to itors, or the parties here contesting. execution liens, the statute is silent, The bill, however, alleges as an ex-and the court must necessarily deter-cuse for the delay, that Blackburn, the mine, from delay and other circum-trustee in the deed of settlement, re-stances, whether the lien has been moved the slaves from Scott to Pulaski waived or abandoned." county, shortly after the execution of Where personal property is levied the delivery bond, and appellants were upon, and, by direction of the plaintiff; not aware of where they were until the sheriff permits it to remain in pos-some time in the year 1846, when they session of the defendant, and returns sued out the fi. fa.'s, etc. The appel-the execution without a sale, the levy lants were non-residents of the State, will not continue to be alien as against and had perhaps no personal knowl-intervening rights of other persons.' edge of the matter, but it does not ap-Whipple v. Foot, 2 John. R. 422. pear that their attorneys, who resided Storm v. Woods, 11 Id. Kellogg v. here, and had charge of their clairns, Griffin, 17 Id. 276. Brown v. Cook, 9 used any diligence in the premises, or Id. 361. Commonwealth v. Stremback, if any, what. The deed of settlement 3 Rawle 341. Collins v. Stanbridge, 5 was executed, and recorded in Scott Id. 286. Snyder v. BeaM, 1 Browne 366. county befote the appellants brought Such lien is regarded as dormant and their suits at law against Marshall. fraudulent as against other creditors, The slaves were levied upon regardless etc. Cornell v. Cook, 7 C'owen 315. of the deed. The beneficiaries in the Perhaps, upon principle, where goods deed did not consent to the levy, the are levied on, a delivery bond taken, trial of the right of property, or the ex-and returned forfeited at the fall term, ecution of the delivery bond. At least and the plaintiff permits the next en-the record before us shows no such con-suing term of the court to pass without sent on their part. The deed gave to taking out process to enforce the lien Blackburn, as trustee, the possession of the levy upon the goods, he might, and control of the slaves, for the use by such neglect, lose his lien as against and benefit of the cestui que trusts. any intervening right of other credit-Upon the face of the deed, recorded as ors or purchasers, etc. But be this as above stated, it was recited that he re-it may, in this case, the appellants sided in Pulaski county. He says, in sued out no process upon their judg-his answer, that in the discharge of ments for more than five years after what he regarded as his duty, as such the return of the bond f orfeited, and trustee, he removed the slaves from 1. See State Bank v. Etter, 15-274, note 1. Scott to Pulaski county, and there
SLOCOMB V. BLACKBURN. VOL. 18 openly, and without concealment, was not embraced in the deeds, and ht managed, controlled and employed was considerably indebted to other them for the benefit of the beneficiaries. creditors besides the appellants. He Marshall, himself, the bill states, re- failed in the mercantile business in. moved to Pulaski couuty in the year Scott county, which it seems he car-1842, and continued to reside there ried on extensively, and perhaps most thenceforward until his death. Under of his debts, which remained unpaid all these circumstances, it would seem • at his death, were contracted before, diligence on the part of the appellant, or about the time of his marriage with or their attorneys, would have enabled Miss Blackburn. None of the inercan-them to ascertain the necessary infor- tile assets were embraced in the deeds. mation to commence proceedings at law It is to be inferred from the depositions or in equity, long before they did, to in the cause, that if the deeds were enforce their alleged lien. Blackburn fraudulent and void as to appellants, 318-1 denies any fraudulent *removal they were also as to other creditors ; or concealment of the slaves, on his and such other creditors would have an part, and none is proven by the dep- equal claim with appellants to the pay-ositions read upon the hearing. ment of their debts, out of auy assets Upon all the the facts of the case, we left by Marshall, subject to the de-think the claim of appellants to a spe- mand of his creditors. 3i110 lien upon the slaves Sam and Under the provisions of our probate .Nathan, as insisted upon in the orig- system, upon the death of any person, inal bill, is not well founded. whether solvent or insolvent, his es-If the appellants had a specific lien tate passes into the custody of the law, upon the two slaves, as insisted, to be administered for the benefit whether they could have enforced it *of creditors, etc. All claims P319 in equity, and condemned the slaves against the estate are allowed and to the satisfaction of their judgments, classed in the probate court, aud ,are without administration upon Mar- paid according to priority, or pro rata, shall's estate, and without regard to if the estate be insolvent., and in full of our peculiar probate system, we do not solvent, by the executor or administra-mean now to decide. See State v. Etter, tor, under orders of the court, and the ubi sup. balance, if any, is distributed, etc., to In the amended bill it is not pre- heirs, etc. Walker as ad v. Byers, 14 tended that appellants had acquired Ark. R. 252. Adamson et al v. Cummins, any lien whatever, during the life of 10 Ark. B. 541. State Bank v. Etter, 15 Marshall, upon any of the property em- Ark. B. 268. braced in the two deeds of settlement, In some matters touching the ad-other than the slaves Nathan and Sam. ministration of estates, under this sys-The appellants, alleging the deeds to tem, the court of chancery has a juris-be fraudulent and void as against Mar- diction auxiliary to that of the pro-shall's creditors, seem to have taken it bate court ; in others a concurrent, and for granted that they had the right to in some matters a supervisory juris-proceed by bill in equity to subject the diction. But distributees, creditors, whole of the property to the payment etc., of estates are not permitted to of their judgments, without regar0 to convert the court of chancery into a our probate system, or to the rights of probate court, disregarding the ad-other creditors. ministration system, and the appropri-It appears that Marshall died insolv- ate jurisdiction of the probate court, as ent, but he left some property, which established by law, under the provision
JAN. TERM, 1857. 'uf the constitution. See Lemon's heirs V. Rector et al., 15 Ark. 438.2 Pryor v. Ryburn, 16 Id. 671. Anthony v. Peay et al., Id. 18-24 Barasien v. Odum, Id. 17-122. We think the case now before us falls within the principles settled by these decisions. If an administration had been granted upon Marshall's estate, the appellants might have availed themselves of the auxiliary jurisdiction of the court of chancery to determine the validity of the deeds in question, etc. They might have filed a bill for the benefit of themselves and the other creditors against the administrator, the trustee and the beneficiaries in the deed; and if the deeds had been adjudged to be fraudulent and void, the property might have been subjected, by decree, to the satisfaction of the claims of all the creditors, according to priority, etc., whose demands had been established, allowed and classed in the probate court, etc. See Clark,adx. et al. v. Shelton, 16 Ark. 475; Jordan, ad. v. l'enno,13 Id. 593. We are not to be understood as deciding, upon the pleadings and evidence in the cause, that the deeds of settlement were fraudulent and void as against the creditors of Marshall. The 320*] *questions above settled dispose of the case, and render it unnecessary to express any opinion upon the validity of the deeds. The decree of the court below is affirmed. Cited.--18-448; 19-660; 23-273-4 .18; 26-505; 80-248; 10,152. 2. See Lemon's heirs v. Rector, 15-442, note 1.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.