McGee v. Russell

• Decision Date: 23 April 1887
• Parties: MCGEE v. RUSSELL
• Court: Arkansas Supreme Court

4 S.W. 284

49 Ark. 104

MCGEE v. RUSSELL

Supreme Court of Arkansas

April 23, 1887

APPEAL from Lafayette Circuit Court in Chancery, L. A. BYRNE, Judge.

Decree affirmed.

T. T McGee pro se.

The ninth exception, that the master only allowed six percent interest on the part of the purchase money he paid for the lands, instead of ten, was properly overruled. There was no evidence of an agreement that he should have any interest on purchase money paid. In that case he is only entitled to what the law gives in the absence of a contract. Mansf. Dig., sec 4732.

The statute does not authorize two commissioners to make partition, but all three. The three must act. The action of two commissioners was illegal and void. 4 N.H. 53; 6 Mass 496; 9 R.I. 442, 444; 1 Barb. Chy., 73; 37 Barb. 354; 4 Wisc., 123; Freeman on Cot. and Part., sec. 523; Mansf. Dig secs. 4797 to 4800.

The commissioners should have partitioned the land, allowing owelty if necessary, or should have stated why the land could not be divided. Story Eq. (13th ed.), pp. 662, 663, secs. 654, 651, and notes; Daniels Chy. Pr. (4th Am. ed.), 1156, 1157; Freeman on Cot. and Part., sec. 522.

Oscar D. Scott for appellee.

Appellee should have been allowed ten per cent interest on the amount paid on the purchase money notes. Sec. 6401

Mansf. Dig. As to the payee, Russell and McGee were principals. As between themselves, each was a principal for one half and surety for the other half.

As to the legality of the action of two of the commissioners, see sec. 6365 Mansf. Dig.; 36 Ark. 446.

The commissioners exceeded, their authority in attempting to award owelty. Daniel Chy. Pr., 1157 (4th ed.) No fair division could be made, and it was proper to order the lands sold.

FLETCHER, Special Judge. BATTLE, J., did not sit in this case.

OPINION

FLETCHER, Special Judge.

In October, 1878, George W. Russell and Thomas T. McGee purchased the land in controversy, for which they agreed to pay $ 6000, and jointly executed six promissory notes therefor, bearing interest at the rate of 10 per cent per annum from date until paid. Both parties moved upon, improved and cultivated the land; most of the improvements were made and most of the land was cultivated by Russell, who also paid the taxes and three of the notes first falling due, after their maturity.

In May, 1881, Russell filed the complaint in this case against McGee, in which he asked for a partition of the land, that an account be taken of the amounts paid by him for purchase money, taxes and improvements, and of the rents of the land cultivated by him and McGee, and that whatever might be found due him be declared a lien on McGee's interest in the land.

McGee filed an answer and cross-complaint, in which he denied many of the charges of Russell for improvements, and set up counter claims for improvements made, work done and money expended for the benefit of the land, and also for money had and received on his account by Russell, which he claimed as a credit on the amounts paid out by Russell, and asked relief similar to that prayed in Russell's complaint.

The master, to whom the cause was referred by the court, stated an account between the parties and reported a balance in favor of Russell. To this report numerous exceptions were filed by both parties; the court overruled all the exceptions but the eleventh, twelfth and thirteenth, filed by McGee, which were sustained.

Both parties have appealed.

The first four exceptions by Russell were because the master allowed McGee credit for two amounts and interest which were not specifically set forth in his cross-complaint; as to one of these amounts there was no dispute. And as to the other, proof was introduced before the master by both parties, and while good pleading would have required a more specific statement, there was no surprise to Russell and no injustice was done him.

Russell's ninth exception, was because the master only charged McGee with interest at 6 per cent on the amount paid for purchase money of the land, instead of 10 per cent. And the argument to sustain his contention here, is based upon section 6401 Mansfield's Digest, which says: "When any bond, bill or note for the payment of money or delivery of property shall not be paid by the principal debtor according to the tenor thereof, and such bond, bill or note, or any part thereof, shall be paid by the surety, the principal debtor shall refund to the surety the amount or value with interest thereon at the rate of 10 per centum per annum from the time of payment." This statute evidently refers to sureties in the common or technical meaning of that term. Russell and McGee were joint debtors. It is true that for the purpose of contribution, each joint debtor is regarded as the principal...