{ "id": 1449949, "name": "Less v. Manning", "name_abbreviation": "Less v. Manning", "decision_date": "1941-03-31", "docket_number": "4-6278", "first_page": "138", "last_page": "143", "citations": [ { "type": "official", "cite": "202 Ark. 138" }, { "type": "parallel", "cite": "149 S.W.2d 40" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "6 Wheat. 577", "category": "reporters:scotus_early", "reporter": "Wheat.", "case_ids": [ 11731133 ], "opinion_index": 0, "case_paths": [ "/us/19/0577-01" ] }, { "cite": "199 Ark. 1161", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/1161-01" ] }, { "cite": "70 S. W. 2d 572", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 113", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425499 ], "opinion_index": 0, "case_paths": [ "/ark/189/0113-01" ] }, { "cite": "152 S. W. 107", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "106 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345661 ], "opinion_index": 0, "case_paths": [ "/ark/106/0230-01" ] }, { "cite": "83 S. W. 913", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "73 Ark. 174", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504062 ], "opinion_index": 0, "case_paths": [ "/ark/73/0174-01" ] }, { "cite": "199 Ark. 1152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456530 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/1152-01" ] }, { "cite": "287 S. W. 769", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "172 Ark. 31", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1407899 ], "opinion_index": 0, "case_paths": [ "/ark/172/0031-01" ] }, { "cite": "200 Ark. 627", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453497 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0627-01" ] }, { "cite": "198 Ark. 684", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459735 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0684-01" ] } ], "analysis": { "cardinality": 694, "char_count": 10910, "ocr_confidence": 0.533, "pagerank": { "raw": 8.063771935968079e-08, "percentile": 0.4664947647526941 }, "sha256": "d25a1d590f96cb07a13dafdb5e2b6d77db8b900480a97fc2a0028bd2ab9692d8", "simhash": "1:82199e2068423306", "word_count": 1896 }, "last_updated": "2023-07-14T17:41:33.899118+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Less v. Manning." ], "opinions": [ { "text": "Griffin Smith, C. J.\nThe appeal is from a decree dismissing for want of equity a complaint in which it was alleged that Mrs. Kate McRae Bracy disposed of 82 acres of land in Union county with the fraudulent intent to defeat creditors.\nJuly 15, 1927, L. K. Snodgrass, Julia G. Snodgrass, S. Y. Bracy, and Kate M. Bracy delivered to Bankers Trust Company, of Little Rock, agent, their executed notes aggregating $47,500, secured by deed in trust on certain real property. The notes became due July 15, 1932. The indebtedness was reduced to $42,000, and maturity was extended to July 15, 1934 There is testimony of an oral agreement under which maturity was extended to January 29, 1941, with payment of $2,000.\nBy indorsement of May 4,1936, the indebtedness was assigned to Mortgage Loan & Insurance Agency, Inc., agent.\nMrs. Braey died intestate in May, 1939. June 30 of the same year Van E. Manning was appointed administrator of Mrs. Braey\u2019s estate. Manning\u2019s wife is a daughter of the Braeys.\nClaims on behalf of noteholders were allowed July 27, 1939, by Manning, administrator. There was approval by the Pulaski probate court two days later. The order recites that interest had been paid to January 15,1939.\nTwo witnesses familiar with Little Rock real estate testified for plaintiffs. Opinion of one was that at forced sale the Main street property would probably bring $22,500, but in the open market with six months within which to procure a purchaser, it might be worth $25,000. The Markham street property was valued at from $5,250 to $5,550.\nThe second realtor valued the Main street property at $1,000 per front foot. This witness thought the Markham street property was worth from $6,500 to $7,500.\nIf, as one of appellants\u2019 witnesses believed, the Main street property exclusive of improvements was worth a minimum of $16,000, and the Markham street property had a minimum value of $5,250 with improvements, and if insurance of $20,000 carried on the Main street property improvements and $12,000 carried on the Markham street improvements should be added, the total would be $53,250. This assumption presupposes that the improvements were not overinsured.\nAt present Snodgrass and Braey are paying $350 per month, which is slightly in excess of interest at 5 per cent., taxes, insurance, etc.\nThere was testimony on appellees\u2019 behalf that in 1934 the Union county lands were worth \u201cabout $5 per acre and up.\u201d Actual value of a particular tract would depend on oil potentiality, it was said.\nAppellees insist that the Union county lands were not a gift to Mrs. Manning. Alfred Bracy was in the roofing business and needed capital. Sam Bracy, Jr., and Mrs. Manning, turned over to Mr. and Mrs. Bracy certain stocks, the value of those surrendered by Mrs. Manning being from $2,400 to $3,000. Using Mrs. Manning\u2019s stock, and certificates belonging to Sam Bracy, Jr., S. Y. Bracy borrowed money for Alfred\u2019s needs. There was an understanding that the stocks would be returned, or that property of like value would be substituted.\nS. Y. Bracy\u2019s testimony that the property was transferred for a valuable consideration is not denied, although E. J. Risley, Commercial National Bank trust officer, told of conversations with Bracy in which the latter said he did not believe he could induce Mrs. Bracy to mortgage \u201cthe lands in south Arkansas at Mt. Holly.\u201d Bracy is quoted by Risley as having stated that the lands came to his wife through her grandmother, \u201cand she had a sentiment about it.\u201d However, in what appears to have been the same conversation, Risley says Bracy spoke of certain financial involvements as to which Mrs. Bracy was informed, \u201c. . . so she consulted a lawyer and he suggested for her to deed this land to someone, and when everything blew over they could put it back like it was.\u201d Risley says he told Bracy [the trouble] \u201cwas all blown over, and the land should be added to the mortgage. Mr. Bracy said it could be done.\u201d\nAppellants argue that, while in respect of the Little Rock security there has been no foreclosure, it is known by both parties to the mortgage that should sales be decreed the property would not be sufficient to satisfy the debt, and consequently there would be a substantial deficiency judgment. \"We find nothing in the record indicating that appellees share this view. A fair inference to be drawn from S. Y. Bracy\u2019s testimony is that $40,000 was paid for the Main street property alone; and, he added, \u201cI would hate to take less than that for it. \u2019 \u2019 The holdings on Markham street were bought from two owners, one of whom was paid $6,500, and the other $7,000. Improvements were made. Mr. Bracy testified it was worth $12,000 \u201cat least.\u201d\nPointing to the fact that appellants are secured creditors,- appellees argue they are in the position of subsequent creditors, and insist the case is controlled by Cave v. Zimmerman, 198 Ark. 684, 130 S. W. 2d 717, and Barry, Trustee v. Cassinelli, 200 Ark. 627, 140 S. W. 2d 112. In those cases Home Life & Accident Co. v. Schichtl, 172 Ark. 31, 287 S. W. 769, was cited and followed. Appellants agree that \u201cWhile the presumption of fraud of certain conveyances, qualifiedly fraudulent in other respects, is not applicable in favor of secured creditors, . . . the rule does not apply in the case at bar for the reason that -before the conveyance was made it was agreed between the Bracys and the appellants\u2019 agent that the Union county land would be available as security also on the mortgage, and even after it was conveyed this same \u00e1greement was made.\u201d\nThe fallacy of this reasoning is that Mrs. Bracy, the owner, did not agree to mortgage the Union county lands. If it be urged that S. V. Bracy was agent for his wife, the answer is that, without written power of attorney, he could not bind her in the \u2022 manner desired by appellants.\nRobinson v. Bigger, 199 Ark. 1152, 137 S. W. 2d 738, is cited by appellants. In that case there had been foreclosure; also the fraud was clearly proven. It is not analogous to the instant case.\nThere is insistence that the conveyance was to pay a debt barred by the statute of limitations, the shares of stock having been 'delivered in 1929, and the deed to Mrs. Manning not having been executed until 1934 \u2014 more than three years. There was no testimony showing when the indebtedness matured. The statute of limitation would not begin to run until payment was due; nor can a third party interpose the defense for the debtors.\nThe charge of fraud has not been sustained. Hence, the chancellor did not err in dismissing the complaint.\nAffirmed.\nPlaintiffs are: Arthur, Ruth, and Stanley Less; the Commercial National Bank, of Little Rock, trustee of the estate of H. L. Remmel, deceased; Jo Frauenthal, administrator with the will annexed of the estate of Sam Frauenthal, deceased; the Commercial National Bank, of Little Rock, trustee of the estate of T. J. Darragh, deceased; Jarrett and Norma Davis, and Sam Davis, Jr.; Mrs. W. W. Wilson; F. J. Sehmutz, administrator of the estate of Mary B. Amis, deceased; Mrs. Olive Jeanette French, Miss Minnie Melton, Ed. Narkinsky, Miss M. N. Repetti; the Commercial National Bank, of Little Rock, trustee for Mrs. M. D. Hyatt; and the Commercial National Bank, of Little Rock, as trustee for Maxine Anderson. The land is described as west half of the southwest quarter of section 28, township 16 south, range 18 west, and two acres, more or less, in the fractional north half of the northeast quarter of section 33 of the same township and range, described by metes and bounds. An amendment to the complaint made allegations as to disposition of 5.04 acres, details of which are not material to this opinion.\nL. K. Snodgrass and S. V. Bracy, when the notes and deed were executed, were partners in the drug business. The business was incorporated in 1933. Julia G. Snodgrass was the wife of L. K. Snodgrass, and Kate M. Bracy (sometimes referred to as Mrs. Kate McRae Bracy) was the wife of S. V. Bracy.\nWest 50 feet of lots 10, 11, and 12, block 33, and the south half of lot 10, block 78, Little Rock.\nA prior extension had advanced maturity to July 15, 1933.\nThe interest rate was 5 per cent, per annum, and 10 per cent, after maturity. The claims were classified as third class. Pope\u2019s Digest, \u00a7 97.\nThe same witness testified that \u201cWithout improvements on the Main street property I would cut it down to about $17,500 \u2014 that 25 feet, or $16,000 for the 25 feet if the improvements were not on it.\u201d\nThe reference was to \u201cproperty on the west side of Main street between Markham and Second, assuming that the buildings are all old, fairly well maintained as to condition \u2014 in other words, $25,000 as to the value of any of the property in the middle of the block. In 1937 we sold the north 39 feet of lot 9 to Arkansas Amusement Corporation for $36,500. It is immediately south of the Snodgrass & Braey property. That was for less than $1,000 a foot, but the buildings were not in as good a state of repair as [the Snodgrass & Braey] buildings. It was a cash sale, but for a specific purpose.\u201d\nIndicative of the value placed by the mortgagee at the time the loan was made is the condition that fire and tornado insurance of $48,000 should be carried in companies designated by the mortgagee. [It is not the intention, by referring to insurance on buildings and other improvements, to hold as a matter of law that the amount for which policies were issued represents actual or approximate values.]\nOldest son of Mr. and Mrs. Bracy.\nThe loan negotiated by S. V. Bracy in 1932 was $9,150. The personal debt was secured by shares of the common stock of United Drug Company, some of which, according to Risley\u2019s testimony, belonged to Mrs. Bracy. In \u201call these transactions\u201d Risley dealt with Mr. Bracy for Mrs. Bracy.\nThe deed from S. V. Braey and Mrs. Kate McRae Bracy to Mrs. Mary Braey Manning recites \u201cOne dollar in hand paid by Mary Bracy Manning, and other good and valuable considerations,\u201d\nShortly after this conversation occurred Alfred Bracy died.\nCf. Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Kaufman v. Citizens Bank, 189 Ark. 113, 70 S. W. 2d 572; Ramsey v. Broyles, 199 Ark. 1161, 137 S. W. 2d 744.\nA power to convey lands must possess the same requisites, and observe the same solemnities, as are necessary in a deed directly conveying- the lands. Clark et al. v. Graham, (U. S.), 6 Wheat. 577; Thompson on Real Property, v. 7, \u00a7\u00a7 3878, 3883 (Permanent Edition). See Revised Statutes, ch. 31, \u00a7 23, Pope\u2019s Digest, \u00a7 1837, for requisites of power. [See, also, act 27, approved January 31, 1939, relating to power of attorney of married women for waiver of homestead and dower.]", "type": "majority", "author": "Griffin Smith, C. J." } ], "attorneys": [ "Willis Townsend and Wallace Townsend, for appellant.", "Joe K. Mahony, Tom F. Digby, Jr., and Tom F. Digby, for appellee." ], "corrections": "", "head_matter": "Less v. Manning.\n4-6278\n149 S. W. 2d 40\nOpinion delivered March 31, 1941.\nWillis Townsend and Wallace Townsend, for appellant.\nJoe K. Mahony, Tom F. Digby, Jr., and Tom F. Digby, for appellee." }, "file_name": "0138-01", "first_page_order": 156, "last_page_order": 161 }