Greer v. Turner

• Decision Date: 01 November 1885
• Citation: 14 S.W. 383
• Parties: GREER v. TURNER.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

Page 383

14 S.W. 383

GREER v. TURNER.¹

Supreme Court of Arkansas.

November Term, 1885.

Appeal from White chancery court; M. T. SANDERS, Judge.

Clark & Williams, W. R. Coody, and U. M. & G. B. Rose, for appellant. J. W. House and J. M. Moore, for appellee.

SMITH, J.

In the original cause between these parties, reported in 31 Ark. 429, under the style of Turner v. Watkins, it was determined that Turner, by virtue of his redemption as a judgment creditor from the purchaser at execution sale, had become the owner of the equity of redemption in the Searcy Landing plantation, on Little Red river, subject to a debt secured thereon by deed of trust in favor of one Mrs. Dougan and afterwards assigned to Greer & Baucum; and that upon the payment of said debt, of which a tender had been previously made, Turner's title should be quieted; but that he was not entitled to the rents for the year 1873. On the return of the mandate to the circuit court, Turner filed a supplemental bill, charging that towards the end of 1873, Greer & Baucum had obtained possession and control of the lands, and had for several years taken the rents and profits, and had, moreover, received from Watkins a large amount of cotton and other produce which was applicable to the Dougan debt, and which if so applied would, with the aid of the annual rents, overpay that incumbrance. The prayer was that, as mortgagees in possession, they might be held to an account. In their answer to this bill Greer & Baucum admitted the receipt of 33 bales of cotton of the crop of 1873, but claimed to have appropriated the proceeds to another debt which Watkins owed them for advances and plantation supplies. The circuit court found that there was no other debt besides the Dougan debt to which the cotton might be lawfully appropriated. But as this finding was made before the reference to a master, who was directed to take and state an account between the parties, and as Greer & Baucum were thus cut off from proving their debt and the appropriation of the cotton to its payment, this court reversed the decree, and remanded the case, with directions to refer it again to a master to ascertain and report the value of the cotton, and whether or not Watkins then owed Greer & Baucum any other debt except the Dougan debt, and if so to what amount, and whether the parties, or either of them, had made any appropriation of the proceeds. Allowances were also made to the extent of $1,473.31 to Greer & Baucum for taxes, repairs, and improvements, to be deducted out of the rents. And other specific directions were given for restating the account, leaving open nothing except so much of these 33 bales, less the taxes for 1872 and 1873, as Greer & Baucum might not rightfully have appropriated to some other debt. For a more particular statement of the matters and things involved in the supplemental suit, and of the results arrived at, see Greer v. Turner, 36 Ark. 17. Upon the remanding of the cause Turner filed a bill of review. It alleged that in 1869 Watkins had executed a deed of trust on the lands in controversy, conveying them to a trustee for the purpose of securing a debt due to Sallie E. Dougan. Plaintiff afterwards recovered a judgment against Watkins, under which he had the lands sold, buying them in himself, and getting a deed from the sheriff. In the mean time Mrs. Dougan had assigned the debt secured by the deed of trust, and Greer & Baucum had become the owners thereof. The trustee was about to sell, when the plaintiff tendered the amount due on the debt secured by the trust-deed. Plaintiff then filed a bill in the court below, asking for an injunction to prevent the sale. On a final hearing in that suit the bill was dismissed on the ground that after the making of the deed of trust Watkins had no such interest in the lands as was subject to execution; but that decree was reversed in this court. After that the plaintiff filed a supplemental bill in that cause, in which he charged that Greer & Baucum, claiming under the deed of trust, had had possession of the land for many years, during which they had received a large amount of cotton from Watkins, and were liable for rents of the lands, all of which should be credited on the debt secured by the trust-deed. Greer & Baucum answered the supplemental bill, admitting that they had received 33 bales of cotton in 1873, but saying that they had applied their proceeds to the payment of other debts due them from Watkins; claiming also certain sums that they had paid for repairs, taxes, and improvements. On a final hearing the court decreed to the plaintiff the sum of $2,520.25. Both parties appealed, and the decree below was reversed as to some of the matters in controversy; but it was affirmed as to the allowances made to the defendant. After stating these matters of inducement, the bill proceeds to show grounds for the review of so much of the former decree as was affirmed by this court. The bill asserts, on information and belief, that the charge for taxes, repairs, and improvements had been settled by Watkins; that after Greer & Baucum took possession of the lands, they received from Watkins 41 bales of cotton, of the value of $3,000, which they had sold, and of which Greer had received the proceeds. This was in the fall and winter of 1874. The bill stated also that these proceeds have never been applied to the Dougan debt, or to any other debt due from Watkins; that Watkins had paid off the entire debts due to Greer & Baucum, and to Greer; and that the latter had never accounted for the proceeds of the 41 bales of cotton. Plaintiff had no knowledge, information, or belief that Greer & Baucum had received, and had not accounted for, the 41 bales; he had never heard that they had the cotton or its proceeds, and he had no knowledge, suspicion, or belief, that the items for repairs, taxes, and cotton-press had been charged to and wholly paid by Watkins until the final decree had been rendered in the supreme court affirming the allowances claimed by Greer, though Greer knew at the time of claiming them that they had been settled by Watkins. Prayer that the decree as to said allowances be reviewed, and that they be set aside; that an account be taken of said cotton, and of the payments made by Watkins, which should be credited on the Dougan debt; that the proceeds of the cotton, and all other produce and money delivered or paid by Watkins, be credited on said debt; and for all other proper relief. A demurrer was filed to the complaint, and was overruled. Greer, in his answer to the bill of review, denies that the sums allowed in this court for taxes, repairs, etc., had been previously paid by Watkins. He admits that Greer & Baucum received from Watkins 41 bales of cotton. of the crop of 1874, but says that the proceeds were applied to the payment of debts due from Watkins to them, leaving a balance due them, after deducting the credit, of more than $6,000, as shown by a final settlement between them, and evidenced by a memorandum in writing. He denies plaintiff's ignorance of the fact that Greer & Baucum had received Watkins' entire cotton crop for 1874; and denies that the plaintiff is in possession of any additional information on this or any other subject connected with the litigation, since the rendition of the decree which it is sought to reopen and reinvestigate. He further alleges that he tendered to the plaintiff, on the 17th day of August, 1882, $1,552, in full discharge of the decree rendered by this court, and upon its refusal he deposited the money in bank, with notice to the plaintiff, where it still remains, and he offers to pay the same into court. This answer was filed August 6, 1883. After the court had decided that the allegations of the bill were sufficient to maintain a review upon, the two suits were properly treated by the court and by the parties and their counsel as one; the parties being the same, and the issues very similar. To prevent confusion, a formal order of consolidation should have been entered. Mansf. Dig. § 5018. The mandate of this court is the supplemental suit, and the bill of review, with the issues joined...