Cole v. Mettee

• Decision Date: 08 October 1898
• Citation: 47 S.W. 407
• Parties: COLE et al. v. METTEE et al.
• Court: Arkansas Supreme Court

Page 407

47 S.W. 407

COLE et al. v. METTEE et al.

Supreme Court of Arkansas.

October 8, 1898.

Appeal from circuit court, Greene county; Felix G. Taylor, Judge.

Ejectment by Lewis Mettee and another against G. E. Cole and another. Judgment for plaintiffs, and defendants appeal. Reversed.

Cole & Wall, pro se. Luna & Johnson, for appellees.

RIDDICK, J.

The controversy in this case concerns the title to two lots in the town of Paragould and the improvement thereon. The litigation was commenced by an action of ejectment brought by appellees, Lewis Mettee and George Kanne, to recover of appellants, Cole & Wall, possession of such lots. Appellant Cole was at one time the owner of the lots, and Mettee & Kanne base their right to recover upon a sheriff's deed made in pursuance of a sale of such lots under an execution against Cole. On the other hand, the appellant Wall denied the validity of the title set up by appellees, and claimed to be the owner of the land by virtue of a mortgage executed by Cole, which had been foreclosed, and the lots purchased by Wall. Both parties set up a legal title to the land, but the circuit court, on motion of Mettee & Kanne, and over the objection of Cole & Wall, transferred the case to the equity docket. The case was there heard, and judgment rendered in favor of Mettee & Kanne for the possession of the lots. Wall & Cole appealed, and the first question presented arises on the exceptions of appellants to the order of the court transferring the case to the equity docket.

Counsel for appellees, as a reason for the transfer of the case to the equity docket, assert that a question of priority of liens was involved. But courts of equity do not have jurisdiction of suits brought merely to recover the possession of land, and to establish one legal title against another conflicting legal title, even though a question concerning liens be involved. It avails nothing that in such a contest the owner of one legal title undertakes to establish its superiority over the opposing legal title by showing that the execution lien and sale upon which it is based were prior, in point of time, to the mortgage lien and sale upon which the title of his adversary is based. Such matters furnish no ground of equity jurisdiction, for, to call forth the interposition of a court of equity, it is imperative that equitable relief be asked. Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058; Fussell v. Gregg, 113 U. S. 550, 5 Sup. Ct. 631. The equitable doctrine of priorities of which counsel speak has no application in a contest between opposing legal titles to the same tract of land such as we have here. 2 Pom. Eq. Jur. §§ 679, 681, 735. Counsel for appellees cite the case of Percifull v. Platt, 36 Ark. 456, as supporting the jurisdiction of the court of equity in this case. That was an action of ejectment in which the plaintiff recovered a judgment at law. The plaintiff had only an equitable title, and the judgment was reversed on that ground; this court holding that he could not support the action of ejectment upon an equitable title, but must seek his remedy in chancery. In the case at bar the plaintiffs have, or at least claim, a legal title, and in this respect the two cases are easily distinguished.

In saying that the appellees claim under a legal title, we do not forget the contention of appellants that the deed of the sheriff was not sufficient to vest a legal title in appellees for the reason that in such conveyance they were described only by their firm name of Mettee & Kanne, and we will now proceed to state our grounds for not concurring in that contention. It was decided by this court in Percifull v. Platt, supra, that, if a partnership name contained the name of one partner only, a conveyance to the partners by their firm title would vest the legal title in the one partner whose name appeared in the firm name, and that, if the deed be to a partnership name which includes the name of no party, it passes nothing at law. But in this case the partnership name contains the...