Hays v. McLain

• Decision Date: 22 April 1899
• Citation: 50 S.W. 1006
• Parties: HAYS et al. v. McLAIN et al.
• Court: Arkansas Supreme Court

50 S.W. 1006

HAYS et al. v. McLAIN et al.

Supreme Court of Arkansas.

April 22, 1899.

Appeal from circuit court, Clark county; Rufus D. Hearn, Judge.

Action by John C. McLain and others against John Hays and another. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

The complaint alleges: That on May 2, 1889, one Marcellus McLain and wife executed a mortgage on certain lands in Clark county to the British-American Mortgage Company, to secure an indebtedness amounting to $1,368. That on November 26, 1892, said McLain executed a second deed of trust upon said lands included in the deed of trust to the British-American Mortgage Company, to the appellant, to secure the payment of $942, which deed of trust was not signed by the wife. Both deeds covered the homestead. The land included in each was the same, except that there was one 40-acre tract in the last, not in the first. That McLain died, intestate, February 24, 1893, and no administration was had on the estate. That appellant purchased the British-American Mortgage Company's note prior to January 3, 1894, and on that day, to induce McLain's widow to release her dower and homestead in the lands included in the deed of trust to Hays, he gave her the following contract, to wit: "This agreement witnesseth that, whereas C. A. McLain has this day released her dower to me, subject to the terms of a certain mortgage executed to me by Marcellus McLain, in certain land in Clark county, described therein: Now, I have purchased the mortgage given by McLain and his wife, the said C. A. McLain, to the British-American Mortgage Company, for about the sum of fourteen hundred dollars; and that I will proceed to foreclose both of said mortgages, and will, at the sale under said mortgage, if no fight is made upon said foreclosures, bid the amount due me and the British-American Mortgage Company for said land; and that, if I become the purchaser of said lands under said foreclosure for the amount due us, I will accept the upper place in full of the debt due me, including the amount due the British-American Mortgage Company, and will convey the lower place to the said C. A. McLain by deeds with special covenants of warranty. By the lower place is meant the land owned by Marcellus McLain and mortgaged to me in section 18, township 9 south, range 21 west. Jany. 3, 1894. John Hays." That appellant caused suit to be brought in the Clark circuit court on January 16, 1894, to foreclose both said deeds of trust and on October 29, 1894, obtained a decree. That the said widow performed her part of the agreement, and made no fight; nor did she encourage any one else to do so. That on the 2d day of November, 1895, said land was sold at commissioner's sale under said decree, and purchased by Neal Sloan for appellant's benefit for $2,500, which sale was approved by the court. That said widow married one W. A. Robinson, and died leaving, her surviving, the appellees herein as her heirs at law. Prays that appellant be required to convey said lands known as the "lower place" to the heirs.

Answer: Alleges that the upper place was a black-land farm, the rent of which was worth $350 per annum, and that, if no contest had been made in the foreclosure suit, the appellant would have received, and it was a part of the consideration of said contract that he should receive, the rent for the years 1894 and 1895; but that said suit was bitterly contested, by reason of which appellant lost said two years' rent, which was more than the value of the lower place, and, in addition, appellant was forced to pay a large sum in expenses and cost of suit. Further answering, says: The said widow encouraged the defendants in making said defense in said foreclosure suit, and received and appropriated the fruits of the delay. Appellant also, by way of cross bill, says that, after execution of said contract, said widow became indebted to appellant in the sum of $500, and executed a deed of trust for appellant's benefit, to secure the same and other indebtedness, upon "pt. S. W. and N. W. of S. W., section 18, T. 9, R. 11. 160 acres of land"; alleges that the agreement was that the widow and her husband, W. A. Robinson, should give, and they intended to give, and that appellant should receive, and he intended to receive, a deed of trust upon the E. ½ S. W. ¼, the E. ½ W. ½ S. W. ¼, and the N. W. ¼ S. E. ¼ of section 18, township 9 S., range 21 W., but that, by a mistake in the draftsman of said deed of trust, said land was improperly described as above set out; alleges that the conditions of the deed of trust have been broken; and prays that W. A. Robinson be made a party, and that it be reformed and foreclosed, in case the court should hold that the contract set out in the complaint should be enforced. Note and trust deed exhibited.

Appellees demur, because appellant has no legal capacity to sue, and because there is a defect of parties; also a general demurrer. This demurrer was sustained on the ground that it did not state facts sufficient to constitute a cause of action, and was confessed on the ground of defect of parties, and cross bill dismissed. Subsequently the order dismissing the cross bill was set aside; the amended cross bill filed; demurrer renewed, and sustained by the court, without stating on what ground; cross bill dismissed; and exception noted.

John McLain: "Was one of the defendants in foreclosure suit. Represented no one but himself. Had no understanding that he would divide anything he might recover by his resistance to the suit. Has no interest in this case, except is half-brother of the minor plaintiffs."

John Hays: "The object of making the contract sued on was to avoid expense in the suit and to get the rent of the upper place earlier. The contract contemplated no resistance to the foreclosure by any one, and Mrs. McLain stated she would guaranty that no fight would be made by any one, and I think this is what is set out in the contract. A resistance was made, as is shown by the records of the court, and I lost the rent of the upper place for two years. The rent was received by Mrs. McLain. The first year it amounted to between $300 and $350, and to $325 the second year. I furnished her money and supplies after the execution of the contract, and collected this rent for her, and applied it on the debt for money and supplies. I think $600 is a fair value of the lower place. The contract was made January 3, 1894, and the foreclosure suit was filed January 10, 1894. I do not personally know that Mrs. McLain joined in the resistance to the foreclosure. She told me, after the fight began, that John was claiming under a deed made by his father to her and him, and she would get half if he won."

Guy Nelson: "I and Mr. Crawford were attorneys for Mrs. McLain and John C. McLain in the Hays foreclosure suit. I negotiated the trade for Mr. Crawford and myself to represent them in that suit. A short time afterwards Mr. Tompkins and I came to Okolona to take depositions, and on that day, at Mr. Hays' house, Mrs. McLain informed me that our services would not be needed any further, as she had settled with Mr. Hays. We filed no answer for her, and did not consult her further, and we informed John C. McLain of these facts, and read the contract with Mr. Hays."

John C. McLain: "Has no interest in this suit. Is not bound for costs or attorney's fees. Mr. Crawford and I are responsible for costs."

Then follows the testimony of Mrs. C. A. Robinson, the widow of McLain, taken in the foreclosure case, which we are so sure is immaterial and inadmissible that we do not abstract it. Then follows the complaint in the foreclosure case, filed January 10, 1894. That complaint seeks to...