Judge v. Curtis

• Decision Date: 16 January 1904
• Citation: 78 S.W. 746,72 Ark. 132
• Parties: JUDGE v. CURTIS
• Court: Arkansas Supreme Court

78 S.W. 746

72 Ark. 132

JUDGE v. CURTIS

Supreme Court of Arkansas

January 16, 1904

Appeal from Chicot Chancery Court MARCUS L. HAWKINS, Chancellor.

Suit by John Sabine Smith against J. J. Judge and F. P. Poston trustees, and others. Plaintiff dying before decree, the suit was revived in the names of William E. Curtis and Alice C Smith, his executors. From a decree in plaintiff's favor defendants have appealed. Reversed.

Decree reversed and cause remanded.

Frank P. Poston, for appellants.

The attachment was wrongfully issued, and the court erred in sustaining it. 40 Ark. 132; Sand. & H. Dig. § 325. An unrecorded deed must be proved by witnesses, to be good in evidence. 38 Ark. 181; 40 Ark. 237. Plaintiff's remedy lay against the proceeds of the cotton, if at all, and the attachment was wrongful. 36 Ark. 576; 44 Ark. 108. As to rights of innocent purchaser of crops subject to landlord's liens, see: 60 Ark. 362; 31 Ark. 131; 52 Ark 158.

OPINION

BUNN, C. J.

This is a bill in equity to fix a landlord's lien on proceeds of certain cotton, upon which plaintiff had a lien for rent and to subject certain other property of Duffin Bros. & McGeehee, merchants of Memphis, Tennessee, in Arkansas, to the payment of the amount so adjudged, and for other purposes.

In January, 1898, John Sabine Smith, a citizen of New York, was and had been for some time the owner of a plantation in Chicot county, Arkansas, known as the "Florence Plantation," and had rented the same for the year 1897 to W. J. Smith, of that county. At this time he again rented the plantation to the said W. J. Smith for the year 1898 for the sum of $ 1,800, and took therefor his two several promissory notes, each for $ 900, one due and payable on the 15th day of November, 1898, and the other on the 15th day of December, 1898, and secured by his landlord's lien on said crop to be grown on said plantation for that year.

In March next following, W. J. Smith arranged with the defendants, Duffin Bros. & McGeehee, general merchants of Memphis, Tennessee, to furnish him moneys and supplies to enable him to carry on his farming operations during the said year 1898 on said plantation. This arrangement was evidenced by a deed of trust executed by said W. J. Smith on the 1st March, 1898, to defendants Judge & Poston as trustees for the benefit of said Duffin Bros. & McGeehee, by which he conveyed to them for that purpose all the cotton, cotton seed, corn, fodder and hay to be made on said plantation, during that year, and also twenty head of horses and mules of W. J. Smith, then on said plantation, and of various descriptions. This deed of trust was filed for record on the 15th November, 1898. The amount secured as named in the deed of trust was $ 4,000.

When the cotton on said premises had been gathered, ginned and packed, and made ready for the market, the defendant W. J. Smith began to ship the same to the defendants Duffin Bros. & McGeehee, at Memphis, and by the 20th January, 1899, had shipped to them, by steamboat, 91 bales, which were received by said merchants, and as soon as possible sold by them in the markets, and the proceeds, amounting to $ 2,110, placed as a credit on the indebtedness of W. J. Smith to them, secured as aforesaid.

On being informed of this, plaintiff, on the 9th day of February, 1899, instituted this suit, by bill in equity filed, with prayer for judgment against defendants, Duffin Bros. & McGeehee for said cotton, and for cotton received by garnishees, J. P. Alexander & Co., from sub-tenants, and for other and proper relief.

The complaint is substantially to fix the landlord's lien on the amount for which defendants sold said cotton then in their hands, and will be so treated, under the doctrine of Reavis v. Barnes, 36 Ark. 575.

W. J. Smith was summoned, and subsequently appeared and answered, controverting none of the essential or material allegations of the complaint however, and as to him all of the same are taken as confessed. Warning orders were made and published by the clerk against Judge & Poston, the trustees, who were shown to be nonresidents, and also, on same ground, against Duffin Bros. & McGeehee, and an attorney appointed to defend for them, who subsequently made report of his action in the premises, to the effect that he had received response to his communication from Judge & Poston, but none from Duffin Bros. & McGeehee.

Judge & Poston, as trustees, filed their demurrer to the complaint, which being overruled, they then appeared in person and by attorney, and filed their answer, to which plaintiff interposed demurrer.

Upon the filing of the complaint, an affidavit for general attachment in equity against the property of defendants was filed, and ordered issued, as against W. J. Smith, because he had removed, or was about to remove, his property out of the state, not leaving enough to satisfy his creditors, and especially not enough to pay his indebtedness to the plaintiff, and as agent of the other defendants, because they were nonresidents. Under this order ten head of said horses and mules on the plantation in the possession of W. J. Smith were seized. Subsequently a special order of attachment was sued out, and the portion of said crop remaining on...