Hadley v. Bryan

• Decision Date: 15 February 1902
• Citation: 66 S.W. 921,70 Ark. 197
• Parties: HADLEY v. BRYAN
• Court: Arkansas Supreme Court

66 S.W. 921

70 Ark. 197

HADLEY v. BRYAN

Supreme Court of Arkansas

February 15, 1902

Appeal from Lawrence Circuit Court in Chancery, FREDERICK D FULKERSON, Judge.

Affirmed.

Decree affirmed.

George G. Dent, for appellant.

No judgment should have been rendered, in favor of the trustee on the note; an exhibit cannot supply a defect of allegation in a complaint, and in case of conflict the complaint controls. 50 Cal. 298; 32 Cal. 145; 75 Cal. 633; 66 F. 253. The payment made by Gibson for Olney, one of the three joint defendants in the judgment, operated to completely discharge him. 44 Ark. 348, 349; 45 Ark. 290, 292. The joint judgment against Hadley, Olney and Wilson was an entirety, and when it was satisfied as against Olney, it was satisfied as to all and its identity and entirety were so far lost that it could not be revived as against the remaining two. 1 Bl. Judg §§ 211, 491; 14 Ark. 27; 1 Pars. Cont. 27, 28, 186; 1 Rawle, 391; 4 Ad. & E. 675; 1 B. & P. 633; 3 K. & J. 442; 48 Pa.St. 175; 2 Brod. & Bing., 15, 16; 44 Ill. 405; 4 Gilm. 405; 5 Bac. Arb. 702 G.; 2 Whart. Cont. § 1037; 6 Bing. 547; 16 Ark. 331; 44 Ark. 356; 22 Pick. 205; 50 Wis. 138; Lindl. Part. 433, 434; Add. Cont. 1076; 29 Ia. 448; 104 Pa.St. 286.

J. N. Beakley, Joseph W. Phillips, H. L. Ponder and Joseph M. Stayton, for appellees.

Where, in satisfying the judgment against one joint debtor, the judgment creditor stipulates that his rights against the others shall remain unimpaired, the release of the one does not release all. 45 Ark. 291.

OPINION

BUNN, C. J.

On the 14th of February, 1898, J. J. Bryan, as trustee for the use and benefit of the Bank of Black Rock, filed his complaint in equity to foreclose a deed of trust executed by H. H. Hadley and wife, to secure a note executed by H. H. Hadley and John K. Gibson to said bank for the sum of $ 250, dated February 10, 1898, due and payable on the 10th of May, 1898, with interest from date until paid at the rate of 10 per centum per annum. Among other things, it was alleged in the complaint: That on August 30, 1888, James M. Stout and George M. Caldwell, partners, recovered judgment against H. H. Hadley, E. C. Olney and M. G. Wilson for $ 369.50, and $ 11.50 costs, aggregating $ 381, upon which was paid subsequently and duly credited: December 18, $ 5; on May 9, 1891, $ 102.75; and on March 6, 1895, $ 50, leaving a balance on the 6th of March, 1895, the sum of $ ___, bearing 10 per centum per annum interest. That on January 13, 1898, execution issued on said judgment, which was levied on the land of Hadley embraced in the deed of trust to the bank, and ran against the estate of Hadley. The last payment, to-wit: on the 6th March, 1895, made on said judgment, was made by Olney individually, and the following instrument of writing was given him by J. M. Stout, who, it appears, was the sole owner of the judgment, viz: "For and in consideration of the sum of $ 50 to me paid by John K. Gibson, for E. C. Olney, I have this day satisfied a judgment as far as the said E. C. Olney's obligation thereby is concerned, which was obtained by Caldwell and Stout against H. H. Hadley, E. C. Olney and M. G. Wilson, in the Lawrence circuit court for its western district, about the month of August, 1888, and which is the only judgment I own or control against said parties, intending hereby only to release the said Olney and not the said Hadley and Wilson from further obligation on said judgment, and accept the said $ 50 in full for his liability on the same. [Signed] J. M. Stout." That the release of one of the defendants in judgment was a release to all, and that the said judgment was thereby satisfied in full, and as to all the parties defendant therein; and that the execution sale made thereunder of the 248 acres of land of Hadley (which was the same land as is embraced in the deed of trust) was and is null and void. On motion the said J. M. Stout was made a party defendant in the cause.

H. H Hadley filed his answer and cross bill, and also subsequently his amended answer and cross bill, and alleged the same as to the release as did the plaintiff in his complaint. To this answer and cross bill Stout interposed his demurrer, as to the release of the judgment, and then answered the complaint to the same effect. The demurrer of Stout as to the amended answer and cross bill of Hadley was heard by the court on the 14th March, 1900, and upon consideration was sustained, the court holding that the release only went to the release of Olney, and not to the release of Hadley...