Jetton v. Tobey

• Decision Date: 22 February 1896
• Citation: 34 S.W. 531,62 Ark. 84
• Parties: JETTON v. TOBEY
• Court: Arkansas Supreme Court

34 S.W. 531

62 Ark. 84

JETTON v. TOBEY

Supreme Court of Arkansas

February 22, 1896

Appeal from Franklin Circuit Court, Charleston District, JEPHTHA H EVANS, Judge.

Reversed and remanded.

Rowe & Rowe for appellant.

1. It was error to refuse the instructions asked by plaintiff. 38 Ark. 529; 34 id. 707; id. 399.

2. The court's instructions were erroneous. A purchase of property actually in the custody of the law is utterly void and no title whatever is acquired. 11 Ark. 411.

3. The institution of the suit is constructive notice to all purchasers after suit commenced, and there can be no innocent purchaser. 12 Ark. 421; 16 id. 175; 13 Am. & Eng. Enc. Law p. 893, sec. 9.

T. A. Pettigrew for appellee.

1. The instructions asked by plaintiff were properly refused. 38 Ark. 334; 43 id. 184; 34 id. 469; 37 id. 580.

2. The instructions given by the court were clear and complete, and met every phase of the case. The conduct of David Looney and the circumstances show authority for his brother to act for him, but it is only necessary that there be appearance of authority, if caused by himself. Parsons on Cont. (6 Ed.) p. 46. Adopting the acts of his brother in part is an adoption of the whole agency. Id., sec. 52 and notes. He is estopped to deny the agency. Id., sec. 50.

3. It is true that a purchaser pendente lite acquires no title that he can assert to the prejudice of parties litigant, but he may acquire a title that he can assert against his vendor, who is a party to the suit. 12 Ark. 421. The testimony shows that the Jettons released this property to Falconer, and between them and Falconer the doctrine of lis pendens does not apply.

OPINION

BATTLE, J.

Three creditors of David B. Looney, to-wit, Fleetwood Morris, R. M. Jetton, and J. P. Falconer, brought three separate actions against him before a justice of the peace of Sebastian county, each one suing for himself, and causing an order of attachment to be issued in his case. A. P. Jetton was duly appointed to serve process in the action instituted by R. M. Jetton. A mare and other property of the defendant were attached, the mare being first attached in the suit instituted by R. M. Jetton, and thereafter in the other two actions. After this the attaching creditors met to divide the property among themselves, some witnesses say, for the purpose of saving costs, and to hold subject to the attachments, and another says, for the purpose of paying the debts of the defendant to themselves, the brother of the defendant (who had possession of the property at the time it was attached) assenting. In the division the mare was delivered to Falconer, who carried her to Franklin county, and sold her to Franklin Tobey on a credit. Thereafter, A. P. Jetton, who served the order of attachment sued out by R. M. Jetton, demanded the mare of Tobey, and, he refusing to comply with the demand, brought this action against him for her possession in Franklin county. The property sued for was delivered to the plaintiff. In the meantime David B. Looney, having been absent, returned, and compromised and paid his indebtedness to Morris and R. M. Jetton; and the three actions against Looney were dismissed, the attachments were discharged, and the mare was returned to him (Looney) by A. P. Jetton, who had previously gained possession of her by the suit against Tobey. The dismissal of the action of Jetton against Looney and the discharge of the attachment therein were subsequent to the institution of the suit against Tobey. There does not appear to have been any payment of the indebtedness of Looney to Falconer.

In the trial of the issues in the action against Tobey, the foregoing facts were shown by the evidence. It was further shown that Tobey had no notice of any defect in the title of Falconer to the mare at the time he purchased her. Upon this evidence the court instructed the jury as follows: "The plaintiff claims possession of the property by reason of the fact that he had levied upon the same by virtue of a writ of attachment against David Looney in favor of Marion Jetton. If plaintiff was appointed by the justice of the peace to serve the writ of attachment in the Jetton case, and the mare was delivered to Falconer by the plaintiff in this case, or Marion Jetton and Falconer brought the mare from Sebastian to Franklin county, and Falconer sold the mare to Tobey with notice to Tobey of the situation of the property, then plaintiff can recover, unless Falconer obtained the mare under a compromise with George Looney, and George Looney had authority from David Looney, expressed or implied from the circumstances, to make the compromise in the Falconer case, and delivered the mare to him in settlement of Falconer's claim, in which event plaintiff is not entitled to recover. If J. P. Falconer obtained possession of the mare as explained in the above instruction, either in lawful compromise with George Looney, and he was Looney's agent, or otherwise under agreement with plaintiff or Marion Jetton, and conveyed the mare from Sebastian to Franklin county, and sold her to Tobey for cash or on a credit, and at the time of sale Tobey had no notice or knowledge of the condition of the title of the property, and bought believing he was getting a good title, defendant Tobey is entitled to recover."

The jury returned a verdict in favor of the defendant. A judgment was rendered accordingly, and the plaintiff appealed.

The jury were virtually told by the instructions of the court that if Tobey purchased the property in controversy in good faith, without any notice of any defect in the title of his vendor, he was entitled to recover, notwithstanding the person from whom he purchased had and was entitled to nothing more than possession. That is not true.

A general rule of the law of personal property is that no man can sell that which he has not and is not authorized by the owner to transfer, or confer a better title than that he has. An honest purchaser under a defective title cannot hold against the true proprietor. "No one can transfer to another a better title than he has himself, is a maxim," says Chancellor Kent, "alike of the common and civil law, and a sale, ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor." To this rule, however, there are exceptions. Among them are enumerated the following Transfers of money, bank bills, checks, and notes payable to bearer or transferable by delivery in the ordinary course of business to a person taking them bona fide and paying value for them: (Fawcett v. Osborn, 32 Ill. 411), bona fide purchases from fraudulent buyers, or others having a voidable or defeasible title; and, in England, sales in market overt, an exception which does...