Fry v. White

• Decision Date: 11 March 1918
• Docket Number: 224
• Parties: FRY v. WHITE
• Court: Arkansas Supreme Court

201 S.W. 1105

132 Ark. 606

FRY v. WHITE

No. 224

Supreme Court of Arkansas

March 11, 1918

Appeal from Pope Chancery Court; Jordan Sellers, Chancellor reversed.

Decree reversed.

J. G Wallace & Son and J. T. Bullock, for appellants.

1. Appellants' equities are superior to those of appellee and it was error to adjudge the costs against them. John W White was not an innocent purchaser. 35 Ark. 103; 43 Id. 464; 94 Id. 301; 97 Id. 398; 103 Id. 425; 45 Ark. Law Rep. 197; 95 Ark. 582; 53 F. 875; 58 Ark. 91. He is charged with constructive notice. Kirby's Digest, § 762; Jones on Mortg. § 456.

2. White's mortgage was void for uncertainty. 48 Ark. 49; 40 Id. 536; 43 Id. 353; 35 Id. 470; Pom. Eq. Jur. § 654; 1 Jones on Mortg. § 66.

3. White should pay these costs. His remedy is against J. H Fry.

Hays & Ward, for appellee.

1. In chancery cases the question of costs is within the sound discretion of the chancellor. 18 Ark. 207; 19 Id. 148; 36 Id. 383; 66 Id. 7; 80 Id. 108, 138; 86 Id. 608, 613; 80 Id. 280.

2. The findings of a chancellor will not be disturbed unless clearly against the preponderance of the evidence. Here they are not.

OPINION

HUMPHREYS, J.

W. C. Fry, M. M. Fry and J. W. Fry, appellants, and J. H. Fry obligated themselves to pay R. J. Wilson $ 50,000, in five equal yearly installments, balance of purchase money for 2,400 acres of land in Pope County. Parts of the lands were sold by the Frys in small tracts, subject to Wilson's mortgage, for the purpose of partially liquidating the indebtedness to him. The unsold parts of the lands were partitioned, 480 acres to J. H. Fry and 1,200 acres to appellants, subject to the Wilson mortgage. W. C. Fry, M. M. Fry and J. W. Fry sold 800 acres of the lands apportioned to them to J. H. Fry and L. D. Ford, and as part consideration, said Fry and Ford agreed to pay the balance due R. J. Wilson by the other three Fry brothers, the grantors in said deed. Afterwards, L. D. Ford sold his undivided one-half interest in 680 acres out of the 800 acre tract to R. H. Fry, who was a son of J. H. Fry, and as part consideration, R. H. Fry agreed to pay one-half of the R. J. Wilson mortgage. Subsequently, J. H. Fry executed a mortgage upon his part of said lands to John W. White, the appellee herein, to secure an indebtedness for $ 8,300. Default was made in the payment of the R. J. Wilson mortgage to the amount of $ 12,578.49 and foreclosure proceedings were instituted in the Pope Chancery Court to collect same out of the entire 2,400 acres of land. Fry and all subsequent purchasers were made parties to the foreclosure proceedings. Judgment was rendered against J. H. Fry, W. C. Fry, M. M. Fry and J. W. Fry for Wilson's debt and a lien was declared upon the entire 2,400 acres to pay same. A sale was ordered, first, of the lands acquired by J. H. Fry and his son. The lands were sold to appellee for $ 23,338.48. Out of the proceeds of the sale, the R. J. Wilson debt, interest and costs were paid and the balance applied on appellee's indebtedness. The amount of the bid was sufficient to pay both the R. J. Wilson debt and appellee's debt, but the accrued costs in the Wilson foreclosure suit amounted to $ 217.55, and the bid was not sufficient to cover this amount. Appellee having received $ 217.55 less than was due him out of the bid, the payment of the costs out of the proceeds, was treated as a payment by appellee to R. J. Wilson for W. C. Fry, M. M. Fry and J. W. Fry, and appellee was subrogated to R. J. Wilson's right as against them. To this action of the chancellor, exceptions were saved and an appeal has been prosecuted to this court.

Appellants contend that their equities are superior to those of appellee, and that the court erred in placing the costs of the Wilson foreclosure on them. Appellee contends that the cost of the Wilson foreclosure was placed upon appellants by the court in the exercise of a sound discretion, which is conclusive of the case.

Learned counsel for appellee have cited numerous authorities in support of the position that costs are not necessarily adjudged against the losing party in chancery cases, but that the chancellor may, in the exercise of a sound discretion apportion the costs according to equitable principles when the facts justify. The rule contended for is sound but is only applied when equities between the various parties warrant it. For example, if one party is at fault more than another, it is proper to...