Jackson v. Becktold Printing & Book Mfg. Co.

• Citation: 112 S.W. 161
• Parties: JACKSON et al. v. BECKTOLD PRINTING & BOOK MFG. CO. et al.
• Decision Date: 15 June 1908
• Court: Supreme Court of Arkansas

112 S.W. 161

JACKSON et al. v. BECKTOLD PRINTING & BOOK MFG. CO. et al.

Supreme Court of Arkansas.

June 15, 1908.

Appeal from Clay Chancery Court; Edward D. Robertson, Chancellor.

Action by George M. Jackson and others against the Becktold Printing & Book Manufacturing Company and others. Decree for defendants, and complainants appeal. Affirmed.

The present suit filed on the 11th day of August, 1902, by appellants, the husband and children of the late Fannie C. Jackson against appellees was brought to set aside a decree of the circuit court sitting in chancery purporting to have been rendered at the January term, 1897, of the court, but alleged to have been rendered and entered of record in vacation in July, 1897, and to redeem certain lands ordered sold by said decree, and for an accounting of the mortgage debt, rents, profits, and waste. Fannie C. Jackson in her lifetime was the owner of the premises referred to, and in March, 1892, she executed a mortgage thereon to W. G. Bryan, which he, in October, 1895, assigned to W. B. Becktold & Co., a partnership. On the 29th day of April, 1896, Becktold & Co. brought suit to foreclose said mortgage and made said Fannie C. Jackson and W. G. Bryan parties defendant thereto. In May, 1896, Fannie C. Jackson departed this life, intestate, leaving her surviving George M. Jackson, Sr., her husband, and the remaining plaintiffs and appellants in the present suit as their children and her sole heirs at law. On the 16th day of July, 1896, Becktold & Co. commenced a new suit to foreclose the mortgage above mentioned, in which all the appellants except George M. Jackson, Sr., were made defendants. In January, 1897, the appellee, Becktold Printing & Book Manufacturing Company, hereafter called "Becktold Company" a corporation, was by order of the court, on its own application and on the application of Becktold & Co., substituted as plaintiff in that foreclosure proceeding by reason of the fact that Becktold & Co. had, pending the action, assigned the mortgage to the corporation. There was entered upon the records of said court a judgment and decree finding that there was due upon the mortgage the sum of $5,525, and directing a sale of the premises for the payment thereof. The records of the court show that this decree was rendered and entered of record during the January term, 1897. Pursuant to the directions of the decree, the lands were advertised for sale by the commissioner of the court, and on the day of sale were struck off to the appellee, Becktold Company. The sale was reported to the court, and duly confirmed at the next term thereof. A deed was executed by the commissioner to said Becktold Company, which was approved by the court. Thereupon the said Becktold Company entered into possession of said lands. The complaint alleges that it went into possession of all said lands about the 1st day of January, 1898. On the 7th day of February, 1898, the Becktold Company by its deed duly recorded conveyed a part of these lands to B. B. Biffle. Thereafter and before the institution of this suit, Biffle conveyed a part of the lands so purchased by him to other appellees herein. The Becktold Company, also, by direct conveyances, duly recorded, conveyed a part of the lands to other appellees herein. The record does not disclose whether any of the lands are now owned by the Becktold Company, nor does it contain a complete description of the lands sold to Biffle. It only shows the date of the sale to Biffle and contains a description of the lands sold by Biffle to other purchasers.

The testimony in this case shows that the foreclosure suit was not heard and determined at the January term, 1897, of the court, but that the case was taken under advisement until after the adjournment of the court, and it was agreed by the parties to the suit that the findings of the judge should be made in vacation, and the result embodied in a decree to be entered of record as if in term time. Pursuant to this understanding, the judge of the court decided the case, in July, 1907, in vacation, and caused a decree to be prepared in accordance with his findings and had the same entered of record as if the proceedings were had during the January term, 1897, of the court. George M. Jackson, Sr., was present at the January term, 1897, when the agreement for rendering and entering of record the decree in vacation was made. He represented the defendants to that suit. They were nonresidents and not present. Maude S. Jackson was alleged in the complaint in the foreclosure proceedings to be a minor, and a guardian ad litem was appointed to make her defense. His answer denies that she was at that time a minor. The present record does not disclose whether or not she was at that time a minor, nor at what time, she reached her majority, but she sues as an adult in the present case. George M. Jackson, Sr., testified that he objected to the decree rendered in vacation after it was made, and told the Becktold Company that the defendants all of whom he represented would not be bound by the decree. No objections were made to the confirmation of the sale, or to any of the subsequent proceedings in the case. As above stated the present suit was instituted to set aside the decree rendered in the foreclosure proceedings. The defendants appellees in this court filed separate answers containing a general denial of the allegations of the complaint and pleading laches and estoppel on the part of the plaintiffs, to maintain their action. The chancellor found as a fact that the foreclosure decree was in vacation of the court, but held that such facts could only be shown by the record in the cause, and therefore dismissed the complaint, except as to George M. Jackson, Sr., for want of equity, because the record in the cause did not show that the foreclosure decree was pronounced in vacation. The court also found that George M. Jackson, Sr., as the husband of said Fannie C. Jackson had an interest in the lands, and was not bound by the decree rendered in the foreclosure proceedings because he was not a party thereto, and appointed a commissioner to state an account between him and the Becktold Company. This decree was rendered at the March term, 1907, of the court, and the Becktold Company excepted to that part of the decree which held that G. M. Jackson, Sr., had an interest in the land, and prayed an appeal to the Supreme Court, which was granted. In October, 1907, the plaintiffs in the court below were granted an appeal by the clerk of this court.

J. D. Block and F. H. Sullivan for appellants. L. Hunter, Moore & Spence, and J. L. Hornsby, for appellees.

HART, J. (after stating the facts as above).

The evidence in this case shows that the decree was rendered in vacation. The chancellor so found, but was of the opinion that such fact could only be shown by the record in the cause, and therefore excluded from his consideration all the evidence contained in the deposition of witnesses showing or tending to show that the decree was actually rendered in vacation. In this there was error. The precise question was otherwise determined in the case of Biffle v. Jackson, 71 Ark. 226, 72 S. W. 566. The court said: "That the original decree was rendered in vacation is abundantly established by the testimony both of witnesses and the record, since it is shown that the depositions upon which the decree is based were taken after the adjournment of the court at which the decree purports to have been rendered." It was held in the same case and in the later case of Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20, that a decree in chancery...