Greer v. Ferguson

• Decision Date: 11 June 1892
• Citation: 19 S.W. 966,56 Ark. 324
• Parties: GREER v. FERGUSON
• Court: Arkansas Supreme Court

19 S.W. 966

56 Ark. 324

GREER v. FERGUSON

Supreme Court of Arkansas

June 11, 1892

CROSS APPEALS from Mississippi Circuit Court in chancery, J. E RIDDICK, Judge.

Greer & Adams brought suit in chancery to enforce a claim of $ 4,660 against Ferguson & Hampson and Louis Hanauer, alleging that the claim arose out of professional services rendered them in defending their title to certain land. They also procured an attachment to be levied upon the land. The complaint alleged that Ferguson & Hampson had fraudulently conveyed the land to D. H. & F. P. Poston as trustees to secure a large sum due to Schoolfield, Hanauer & Co., of which firm Louis Hanauer was a member; that the trust deed was void on its face, and was executed by D. L. Ferguson without authority; that the debt to Schoolfield, Hanauer & Co. was feigned; that Ferguson & Hampson were insolvent; that Louis Hanauer had no other property within jurisdiction of the court. The prayer was that the amount sought to be recovered be declared a prior lien on the land, and that plaintiffs recover the amount due them.

Schoolfield Hanauer & Co. and Louis Hanauer denied that plaintiffs were ever employed by them or any of them; alleged that plaintiffs were employed solely by Ferguson & Hampson, and that Louis Hanauer was represented, in the case referred to, by his own counsel. They denied that the trust deed was fraudulent. Hampson's answer admitted that. Ferguson & Hampson owed plaintiff a small balance, not exceeding $ 200 on their fee.

During the pendency of the suit Hanauer died a resident of the State of Tennessee. Upon suggestion of his death the suit was revived against Hugh R. McVeigh as administrator ad litem there being no administrator upon Hanauer's estate in this State. Subsequently W. W. Schoolfield and D. H. Poston executors of the will of Hanauer under appointment of the probate court of Shelby county, Tennessee, appeared and were made defendants to the suit. Thereafter the administrator ad litem appeared no further in the action, and no relief was asked or granted against him.

Upon the final hearing the court found that plaintiffs were retained under a joint employment by Ferguson & Hampson and Hanauer. The attachment was dismissed at plaintiffs' cost. For their services the court allowed plaintiffs a fee of $ 1,500 with interest, and rendered judgment against Ferguson & Hampson and against Hanauer's executors for that amount. The court adjudged the trust deed to D. H. & F. P. Poston to be valid, and held that plaintiffs were not entitled to an attorney's lien on the land. Plaintiffs have appealed; as likewise did Hanauer's executors and Hampson.

Judgment reversed and cause remanded.

E. F. Adams for appellants.

1. The facts found by the court are conclusive as to the employment of appellants jointly by Ferguson & Hampson and Hanauer, and the finding is sustained by the evidence. 38 Ark. 144; 45 id. 41; 53 id. 161; ib. 327; ib. 537; 54 id. 229.

2. The trust deed was fraudulent and void as to creditors. One partner cannot convey real estate not of record in his name, even though it be partnership property. In this case the lands were owned by Ferguson and Hampson as tenants in common. Pars. on Part. (1st ed.) top p. 367; ib. (2d ed.) 389; 27 Am. Dec. 452; 29 id. 463; 19 Ga. 14; 1 Sumn. 173; 36 Miss. 40; 21 Ala. 437, and many others. See 15 Gratt. (Va.) 35, 36; 70 Pa.St. 79. The statutes of Arkansas make them tenants in common. Mansf. Dig. sec. 647; 31 Ark. 580; 36 id. 456.

3. Appellants were entitled to a lien on the lands. 38 Ark. 591; 36 id. 591; 15 Johns. 405; 15 How. (U. S.) 417; 13 Ark. 194; 1 Cow. (N. Y.) 172; 4 Cow. (N. Y.) 416.

4. Hanauer was a non-resident, and the attachment as to him should have been sustained.

5. The suit was properly revived against Hanauer's executors, and they entered their appearance, and the judgment is binding on Hanauer's estate. Mansf. Digest, sec. 4937; 20 Ill.App. 210; 3 Biss. 504; 37 N.Y. 523; 7 Cow. 64; 28 Ark. 253; Mansf. Dig. secs. 5231-2; 143 U.S. 215.

U. M. & G. B. Rose for Hanauer et al.

1. The appellants were not entitled to a lien; their services were purely defensive. Mansf. Dig. sec. 3937; 47 Ark. 86.

2. The deed to Ferguson & Hampson was to them as partners, and there is no evidence that they held as tenants in common. It was partnership property. 1 Bates on Part. sec. 281; 1 Dev. Deeds, sec. 49; 46 Ark. 464.

3. One partner can, with the assent of his co-partner, convey partnership lands by deed in the firm name. 1 Devlin, Deeds, sec. 110; 1 Ark. 206; 4 id. 450; 20 id. 325.

4. The court erred in reviving the cause against the foreign executors of Hanauer and in rendering a personal judgment against his estate. Mansf. Dig. secs. 4937, 5231-2-3; Story, Conf. Laws, sec. 513; 1 Woerner, Am. Law. Adm. secs. 157-8, 160; Whart. Confl. Laws, sec. 616; Schouler, Ex. & Adm. sec. 179; 15 Peters, 5; 14 How. 375; 5 C. E. Green, 242; 11 Ill. 211; 6 Mo.App. 135; 7 Humph. 91; Walker (Miss.), 211; 5 Blatch. 501; 1 Hare, 482; 1 Dana, 445; 87 Pa. St 142; 10 Yerger, 283; 3 Head, 87.

OPINION

HEMINGWAY, J.

For convenience we may divide the judgment below and treat it, first, as a judgment against Ferguson & Hampson, and, second, as a judgment against the executors of Hanauer.

From the first the plaintiffs alone appeal; and they complain at the court's action in discharging the attachment, and also in refusing to charge a lien upon the land to secure a judgment in their favor, it being rendered upon a claim for services as attorneys in defending a former suit against the present defendants for the recovery of the land.

From the second both parties have appealed; the plaintiffs because the sum awarded them is too small and the executors of Hanauer because there was any recovery against them.

It is insisted that the attachment should have been sustained on the ground that the defendants had fraudulently disposed of the land attached. The act relied upon as evidence of fraud was the making of a mortgage for the land by Ferguson in the name of the firm of Ferguson & Hampson. It is argued that the mortgage was not a valid conveyance, and that, as it placed a colorable incumbrance upon the land, it had a tendency to hinder and delay the creditors of Ferguson & Hampson, and was therefore fraudulent. The mortgage is claimed to have been invalid, first, because the land belonged to the persons composing the firm as tenants in common and was not the property of the firm. Of this fact there is no proof; and as the burden of proof was upon the plaintiffs, we must find against them.

The next reason assigned for its invalidity is, that it was executed by but one of the two partners, and this, it is claimed, was beyond his power. As it was executed by one in the presence of the other and with his consent, as security for a firm debt, it was binding upon the firm. Ferguson v. Hanauer, ante, p. 167.

As the claim arose out of services rendered in defending the title to the land and not in the recovery of the land, the attorneys acquired no lien upon it. Hershy v. DuVal, 47 Ark. 86, 14 S.W. 469.

We are therefore of opinion that, upon the abstract and brief filed, no error prejudicial to plaintiffs appears in the judgment, so far as it affects Ferguson & Hampson.

In considering the judgment in so far as it affects the estate of Hanauer, we are confronted by the question, whether the court could revive the suit in the name of his foreign executors so as to render any judgment against them binding upon his estate. After the cause was submitted we referred this question to counsel for re-argument, and have been furnished with briefs which direct our attention to many authorities. We have examined the citations and find the question settled by the authority of adjudged cases and of text writers with exceptional unanimity.

It was decided by the Supreme Court of the United States in the case of Vaughn v. Northup, 15 Peters 1. Judge Story, after stating the question, says for the court: "Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it; and does not de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased in any other State; and whatever operation is allowed to it beyond the original territory of its grant is a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its own citizens. On the other hand, the administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other States have no right to interfere with or to control the application of those assets according to the lex loci. Hence it has become an established doctrine that an administrator, appointed in one State, cannot, in his official capacity, sue for any debts due to his intestate in the courts of another State; and that he is not liable to be sued in that capacity in the courts of the latter, by any creditor, for any debts due there by his intestate. The authorities to this effect are exceedingly numerous, both in England and America; but it seems to us unnecessary, in the present state of the law, to do more than to refer to the leading principle as recognised by this court in Fenwick v. Sears, 5 U.S. 259, 1 Cranch 259, 2 L.Ed. 101; Dixon's Exrs. v. Ramsay's Exrs. 7 U.S. 319, 3 Cranch 319, 2 L.Ed. 453; and Kerr v. Moon, 22 U.S. 565, 9 Wheat. 565, 6 L.Ed. 161." The authority of this case was not impaired by a...