Hess v. Adler

• Decision Date: 17 February 1900
• Parties: HESS v. ADLER
• Court: Arkansas Supreme Court

55 S.W. 843

67 Ark. 444

HESS v. ADLER

Supreme Court of Arkansas

February 17, 1900

[Copyrighted Material Omitted]

Appeal from Stone Circuit Court in Chancery, F. M. HANLEY, Special Judge.

STATEMENT BY THE COURT.

This is an appeal from a decree in chancery in favor of the appellees, claiming an undivided half interest in certain lands described in the complaint of appellees, and canceling the deeds under which the appellants claimed title to the same, and quieting the title of the appellees thereto.

The bill was filed October 28, 1874, by Alexander Adler and others against the appellants. It alleges that in the year 1860 James Ivey, Jr., Aaron Hirsch, and Israel H. Adler, were tenants in common of lands therein described. That a decree in portion was made in September, 1860, at the instance of said Ivey, giving him one-third, and the said Hirsch and Adler two-thirds of the lands, and this decree was performed by commissioners, who set apart certain of said lands to Hirsch and Adler; that said Hirsch and Adler took possession of said lands. That afterwards, on or about the 3d of June 1867, one Andrew Allen instituted a suit in the circuit court of Independence county (wherein said lands were then situated) against the said Aaron Hirsch, by filing a declaration in debt, and causing to be issued thereon by the clerk of said court a writ of attachment against the said Aaron Hirsch, commanding the sheriff of said county to attach all and singular his goods and chattels, lands, and tenements, credits and effects, or so much thereof as should be sufficient to secure the sum of $ 555.16, with interest and costs of suit. That in obedience to said writ the said sheriff, on June 11, 1867, attached the lands owned by said Hirsch and Adler as the property of said Hirsch. That on January 25, 1868, said Allen obtained judgment for $ 921.01 and costs, and a judgment of condemnation against the said land so attached; that on June 26, 1867, one Thomas Cox brought a similar suit in said court against said Hirsch for $ 2,500, interest and costs, under which the lands aforesaid were attached, and against which a judgment was rendered on January 25, 1868, for $ 3,525, and costs, and said lands were condemned to be sold to satisfy said judgment. That pluries executions issued in said causes on September 20, 1869, under which, after advertisement of said sale, on November 15 1869, said lands were sold by said sheriff at public auction to the highest bidder in different tracts,--one of the complainants, to-wit: Simon Adler, buying in, under the Allen executions, e. 1/2 ne. 1/4 17, ne. 1/4 se. 1/4 17, 13 north 8 west; one Theophilus Edmonson buying in that part of sw. fractional 1/4 of section 5, 13 north, 18 west, west of White river, and se. 1/4 se. 1/4 16, 13 north, 8 west; said Cox buying nw. 1/4 ne. 1/4 17, nw. 1/4 ne. 1/4 21, ne. fractional 1/4 ne. fractional 1/4 21, sw. fractional 1/4 nw. fractional 1/4 16, ne. 1/4 sw 1/4 16, all in 13 north, 8 west. That under the Cox execution said Cox bought in se. 1/4 ne. 1/4, 21, ne. 1/4 se. 1/4 21, part e. 1/2 se. 1/4 6, ne. 1/4 ne. 1/4 7, township 13 north, range 8 west; Asberry York bought in ne. 1/4 ne. 1/4 28, se. 1/4 se. 1/4 21, 13 north, 8 west; Thomas M. Hess bought in nw. fractional 1/4 nw. fractional 1/4 16, sw. fractional 1/4 se fractional 1/4 16, nw. fractional 1/4 of se. fractional 1/4 16, se. fractional 1/4 of nw. fractional 1/4 16, 13 north, 8 west, and James W. Butler bought in sw. 1/4 se. 1/4 21, 13 north, 8 west; that the said Butler assigned his certificate to said Simon Adler. That said lands were never redeemed, and twelve months after the sale the sheriff aforesaid executed deeds to said lands so purchased as follows: To Thomas Cox, November 9, 1870, acknowledged December 9, 1870; to Thomas M. Hess December 10, 1870; to Simon Adler March 13, 1871 (the deed to Adler including the lands purchased by Butler); to Asberry York December 10, 1870; to Theophilus Edmonson and James M. Case, his assignee, February 5, 1871. That said Cox conveyed the ne. 1/4 of the ne. 1/4 of 21, the nw. 1/4 of ne. 1/4 21, se. 1/4 ne. 1/4 21, and ne. 1/4 se 1/4 21, 13 north, 8 west, to James M. Gray. That he conveyed to Thomas M. Hess the ne. 1/4 sw. fractional 1/4 16, and sw. fractional 1/4 of nw. fractional 1/4 16, 13 north, 8 west. That said Israel H. Adler died March 15, 1867, leaving no children, he never having married, but the plaintiffs below as his collateral heirs. That he died seized of his half of the lands in controversy. That said Simon Adler became the administrator of his estate on January 24, 1871, by appointment of the probate court of Independence county. That no claims were filed against his estate. That thereafter the said Simon was discharged as such administrator. That no judgment had ever been obtained against said Israel H. Adler which constituted a lien upon any of his real estate. That the said purchasers, or their assigns, obtained possession of said lands at the expiration of the time for the execution of said deeds by the sheriff, and have held possession thereof ever since; and certain mesne profits are referred to as having been received by them. That said James Ivey, Jr., died June 15, 1863, leaving his widow, Paralee Ivey, afterwards Paralee Stokes, and his son James M. Ivey, his only heirs; and that William J. Bell was administrator of his estate. That of the lands so partitioned to James Ivey, Jr., the tracts described were conveyed by the administrator, under proper order of the probate court of Independence county, to James Ivey, Sr., George W. Williams, A. W. Hall, C. C. Monday, and Jno. F. Bell. That said Cox died February 3, 1871, leaving his widow, Laura A. Cox, now Ewing, also his mother, Elizabeth Bybee, John Cox, James Cox, and Pleasant Cox, his brothers, all of whom were his heirs at law, and were non-residents of this state. That said James Ivey, Sr., died May 18, 1870, leaving Mary Ivey, his widow, William Ivey, his son and James M. Ivey, his grandson, and Mary Ivey, his granddaughter, as heirs; and William J. Bell became the administrator of his estate. That both of the grandchildren were minors, and that David M. Stokes had been appointed guardian of said grandson, and William A. Stafford had been appointed guardian of the granddaughter. That the widow and heirs were in possession of the land bought by said James Ivey, Sr., who denied the rights of plaintiff to any portion thereof. That the levy of the attachments in favor of Thomas Cox and Andrew Allen on the interest of Israel H. Adler as the property of said Aaron Hirsch was illegal and void. That the judgment of the Independence circuit court aforesaid, condemning said lands as the property of said Aaron Hirsch, and ordering their sale, was and is illegal and void, inasmuch as said judgment was rendered by said court whereby these plaintiffs were to be deprived of their interest in said land without notice to them, actual or constructive.

And the prayer was that the proceedings of the commissioner in the suit of Ivey v. Hirsch & Adler be confirmed as valid; that, if this could not be done, other commissioners be appointed in this proceeding to make partition; that an account of rents and profits be taken; that the deeds from the sheriff of Independence county to Cox, Hess, Edmonson, and Case, and from the administrator of Cox to Hess, Gray, and others, so far as they pretended to convey the interest which Israel H. Adler had in and to said lands, be canceled, and be held for naught, as a cloud upon the title of plaintiff.

To the bill of complaint, answers and cross bills were filed by W H. Halliburton, Thomas M. Hess, William C. Case, James Case, Sis Dougherty (nee Case) and Nettie Pegg (the four last named being the heirs, and William C. Case being also administrator of the estate of James M. Case.) These agreed, in substance, in admitting the proceedings in the partition suit between Ivey and Hirsch & Adler, as shown by the exhibits to the bill; also the suits of Allen and Cox for debt against said Hirsch & Adler, and the issuance and levy of attachments in said suits upon the real estate of said Hirsch & Adler, the rendition of judgment in said suits, the sale of the real estate levied upon, and the derivation of title to such lands as they respectively claimed under said sales,--the answers in the different cases alleging that in the year 1862 Aaron Hirsch and Israel H. Adler were engaged in the mercantile business in the town of Batesville, Ark., under the firm name of Hirsch & Adler; that during the continuance of said business by said firm they acquired the lands mentioned in the answers as partnership property; that during the continuance of said business said firm became indebted for the debts mentioned in the complaint to the said Allen and Cox as the partnership business of said firm; that Israel H. Adler died, leaving Aaron Hirsch the sole surviving partner of said firm; that the lands aforesaid were partnership assets of said firm; that the lands were sold for the satisfaction of the debts of the said firm as aforesaid; that by the death of Adler the said Hirsch became invested with the title of the partnership assets, including said lands, for the purpose of paying the indebtedness of said firm; that by said sale the parties obtained title to said lands; and that the proceeds of said sale went to satisfy the said debts of said firm. The allegations of the complaint were denied, charging that the judgments condemning said lands to be sold were void, and charging that the plaintiffs had been illegally deprived of their rights; and it was denied they had any rights to said lands. Allen was made a party, and his appearance was entered. And the answers and cross bills also set up estoppel by reason...