Kempner v. Dooley
| Decision Date | 11 May 1895 |
| Citation | 31 S.W. 145 |
| Parties | KEMPNER v. DOOLEY. |
| Court | Arkansas Supreme Court |
Action by A. Kempner against P. C. Dooley and others on two promissory notes, and to foreclose a mortgage securing the same. Defendant Dooley filed a cross complaint, setting up a mortgage held by him on a part of the land as a prior lien to plaintiff's mortgage, and asking for its foreclosure. From a judgment ordering a sale of the entire tract to satisfy plaintiff's mortgage as the prior lien, plaintiff appeals. Cross appeal by defendant Dooley from an order refusing to allow him to amend his answer. Affirmed on cross appeal. Reversed on appeal.
On the 2d day of December, 1891, the appellant filed in the Lonoke chancery court a complaint against B. L. Adams and Alabama Adams, his wife, Perry Adams, Clara Adams, and P. C. Dooley, alleging that on the 8th day of April, 1889, B. L. Adams and Allen Adams were the owners of the following lands in Lonoke county, Ark., to wit, S. E. ¼ of the S. W. ¼, and N. W. ¼ of the S. W. ¼, and the N. E. ¼ of the S. W. ¼, all in section 11, township 1 S., range 10 W., containing 120 acres; that on the 8th day of April, 1889, the defendant B. L. Adams executed and delivered to plaintiff his two promissory notes for $495.50 each, payable in one and two years, and bearing interest at 10 per cent. per annum from date till paid; that on the same day, to secure the payment of said notes, B. L. Adams and Alabama Adams, his wife, and Allen Adams and Clara, his wife, executed and delivered to plaintiff a mortgage on the above lands, which mortgage was recorded in Lonoke county on the 19th day of April, 1889; that some time prior to this the said B. L. Adams and Allen Adams had partitioned and divided the above lands between themselves, by which partition and division each took a certain part (describing it), and that in pursuance of such division and partition each took for himself possession of the part going to him, and built houses and made improvements thereon; that after the execution of the mortgage to plaintiff, Allen Adams died, leaving him surviving as his only heirs his wife, Clara, and a son, Perry, of lawful age; that P. C. Dooley holds a mortgage on the above lands, given by B. L. Adams; that nothing has been paid on plaintiff's notes. Prayer for judgment against B. L. Adams; that the partition heretofore made between B. L. and Allen Adams be made valid, and established, or, if the court declines that relief, that said lands be partitioned; that plaintiff's judgment be declared a lien on B. L. Adams' part, and that the lien be foreclosed, etc. Plaintiff filed an affidavit that defendant was a non-resident, and had warning order issued, and attorney ad litem appointed. At the May term, 1892, P. C. Dooley filed his answer, asking that plaintiff be required to prove his debt, and alleging that Allen Adams left other heirs, who are mentioned, and who are made parties, and afterwards properly brought into court; alleging further that B. L. Adams, on the 19th day of January, 1891, gave to him a mortgage on all his interest in the land described in the complaint, to secure a note for $782.67; alleging that plaintiff ought to proceed against the land of Allen Adams before selling that of B. L. Adams; alleging that he does not know how the land was divided between B. L. and Allen Adams by United States survey, but knows it was divided by metes and bounds; alleging that B. L. Adams had paid plaintiff large sums of money since the execution of the mortgage, and asking that the application of the payments be inquired into; prayer that answer be taken as a cross complaint; that all heirs of Allen Adams, naming them, be made parties; that plaintiff account for all moneys received by him from B. L. Adams; that Allen's interest in the land be first sold to satisfy plaintiff's mortgage, and that B. L.'s interest be sold to pay defendant. At the same term Kempner filed his answer to cross complaint of Dooley, stating that he is not advised as to Dooley's debt or lien, and asking that strict proof be required thereof; alleging that the mortgage which he seeks to foreclose was intended to convey only the interest of B. L. Adams, and that the land that belonged to Allen Adams is not subject to either his or Dooley's mortgage; and denies that anything whatever has been paid on the notes. At the same time the plaintiff, Kempner, filed an amendment to his complaint, showing more particularly the description of the land taken by B. L. and Allen Adams under their...
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