Dunbar v. Cazort-McGehee Co.

• Decision Date: 31 October 1910
• Parties: DUNBAR et al. v. CAZORT-McGEHEE CO. et al.
• Court: Arkansas Supreme Court

131 S.W. 698

DUNBAR et al. v. CAZORT-McGEHEE CO. et al.

Supreme Court of Arkansas.

October 31, 1910.

Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor.

Action by the Cazort-McGehee Company against W. T. Dunbar and others. Decree for complainants, and defendant Dunbar appeals. Affirmed.

Edwin Hiner and Geo. W. Dodd, for appellant. Winchester & Martin and Kimpel & Daily, for appellees.

McCULLOCH, C. J.

The plaintiff, the Cazort-McGehee Company, a domestic corporation, together with one W. R. Bolling, became the surety of John Sharp and Ella Sharp on a supersedeas bond on appeal to the Supreme Court from an adverse judgment against the latter in the chancery court of Crawford county, wherein Henry L. Fitzhugh, trustee in bankruptcy, was plaintiff, and said John Sharp and Ella Sharp were defendants. Ella Sharp owned lands in Crawford county, Ark., and, at the time of the execution of said supersedeas bond, she executed and delivered to the plaintiff a mortgage on one of said tracts of land for the following purpose recited therein: "Whereas, the Cazort & McGehee Company have become sureties on a supersedeas bond given by John Sharp and Ella Sharp to supersede a judgment in favor of Henry L. Fitzhugh in the sum of four thousand dollars. Now, if the said John Sharp and Ella R. Sharp shall satisfy said judgment if affirmed or any judgment rendered against them by the Supreme Court in this cause, then this bond shall be void, but if they fail to do so then the said grantees or their assignee, agent or attorney in fact, shall have power to sell said property at public sale to the highest bidder for cash. * * * And the proceeds of said sale shall be applied, first to all costs and expenses attending said sale; second, to the payment of said debt and interest, and the remainder, if any, shall be paid to said grantor." Subsequently the judgment appealed from was in part affirmed, and Fitzhugh, the judgment creditor, instituted an action against the sureties on the bond and recovered the sum of $2,500, which amount the plaintiff was compelled to pay in satisfaction of the judgment. The present action was instituted in the chancery court of Crawford county by the plaintiff, the Cazort-McGehee Company, to foreclose the mortgage, and W. T. Dunbar, subsequent purchaser from Mrs. Sharp, was made a party defendant. From a decree foreclosing the mortgage, Dunbar has appealed.

The principal contention of the appellant is that the corporation...