Johnson v. Branch

• Decision Date: 26 March 1887
• Citation: 3 S.W. 819,48 Ark. 535
• Parties: JOHNSON v. BRANCH
• Court: Arkansas Supreme Court

3 S.W. 819

48 Ark. 535

JOHNSON v. BRANCH

Supreme Court of Arkansas

March 26, 1887

APPEAL from Monroe Circuit Court, in Chancery, Hon. M. T. SANDERS Judge.

Decree reversed.

S. J Price, for appellant.

1. In this case there was neither fraud, accident, mishap nor mistake, to bring it within the rule of 35 Ark. 123, or 40 ib., 338.

2. Plaintiff was not so aggrieved by the verdict and judgment as to entitle her to a new trial. As to all persons except the mortgagee, Counts was the legal owner and had a right to make the lease to Johnson. Jones on Mortgages, sec. 11.

By notifying Johnson in writing to attorn to her, after she had purchased from Counts, by settling with him for the rent of 1881, according to the terms of the lease, and giving her receipt in writing therefor, and by allowing him to continue to make valuable improvements on the place, she is estopped from denying a ratification thereof. 11 Ark. 264; Bigelow on Estoppel, 479, 492, 504, 509; 33 Ark. 465.

John C Palmer, for appellee.

The appellee's intestate having by accident and mishap beyond her control, lost her right of appeal in a case at law brings her within the rule in 40 Ark. 338, and 55 ib., 123. The only question then is: Did intestate have a good cause of action against the appellant, and was she prejudiced by the judgment of the court.

The mortgage from Counts made the intestate the legal owner of the land, and Counts was only a tenant upon condition, until condition broken, and then a tenant at will. Coote on Mortg., p. 319; Hilliard Mortg., p. 164; 1 Jones Mort., sec. 11.

Her acceptance of rent, past due, bound her to nothing, as it was but the payment of a debt she had a right to receive. Appellant had no writing from intestate, nor from anyone authorized by her. The right of appellant to occupy the land for any particular time or term is settled by Mansf. Dig., sec. 3371, subdivision 5.

OPINION

COCKRILL, C. J.

This is an appeal from a judgment in equity, directing a new trial in an action at law.

1. NEW TRIAL: When ordered by chancery court in case at law.

It was shown that there was no opportunity afforded the party against whom the judgment was rendered to move for a new trial, because the court adjourned and the term lapsed before the motion could be made and disposed of. This was such an accident as would give jurisdiction to a court of equity to grant relief, provided the party complaining was otherwise entitled to it. Vallentine v. Holland, 40 Ark. 338; Harkey v. Tillman, 40 Ark. 551.

The accident alone does not warrant the interference of equity. The judgment must appear to give the winning party an advantage which a court of equity would not permit him to hold, in order to warrant its extraordinary interference with the proceedings at law. It grants relief against judgments in aid of justice, not as a recompense for the accident; and, although the law court may have committed error upon the trial, if the judgment is not against conscience, it will not meddle with it. (Cases sup.) The accident, or some other ground of equitable interposition, and the injustice of the judgment, must concur.

In this case the appellant, Johnson, who was the defendant below as well as in the action at law, took a lease of lands which were subject to a prior mortgage. The appellee's intestate, Mrs. Branch, was the mortgagee, and after the lease had been executed by her mortgagor, she purchased the equity of redemption in satisfaction of the mortgage. Johnson attorned to her, paid her the rent called for by his lease for two years, repaired the fences and recovered the building as required by its terms, and made other valuable improvements upon the land, the benefit of which could not have enured to him except by occupation for the full term of his lease; but, two or three years before the term expired, Mrs. Branch brought an action of unlawful detainer against him, and had him evicted under a writ of possession issued at the institution of the action. The defense offered was that the plaintiff by her conduct had affirmed or adopted the terms of the lease executed by the mortgagor while in possession.

Mrs. Branch accepted the issue tendered, and the preponderance of the proof as we have it, tended to establish the truth of the answer. The plaintiff asked, and the court gave, the following charge to the jury:

"The jury is instructed that after the mortgage was executed by Counts (Johnson's lessor) to Mrs. Branch, the legal title and estate was in Mrs. Branch, and that any lease made by Counts after the mortgage, was void as...