McTighe v. McKee

• Decision Date: 22 March 1902
• Parties: McTIGHE et al. v. McKEE.
• Court: Arkansas Supreme Court

67 S.W. 754

McTIGHE et al. v. McKEE.

Supreme Court of Arkansas.

March 22, 1902.

Appeal from Crittenden chancery court; Edward D. Robertson, Chancellor.

Action by Margaret B. McKee against John S. McTighe and others. Judgment for plaintiff. Defendants John S. McTighe and wife appeal. Reversed.

Dodge, Johnson, Carroll & Pemberton, for appellants. Norton & Prewett and H. H. Myers, for appellee.

BATTLE, J.

This action involved two tracts of land. One is known as the "Memphis Land & Timber Company Land," containing 4,399.35 acres, and the other as the "Brinkley Land," containing 966.26 acres.

Since the appeal in this case was taken both parties have parted with their interest in the Memphis Land & Timber Company land and abandoned the same. We will therefore confine what we have to say and decide to so much of the facts and law of the case as affect the Brinkley land.

On the 3d day of October, 1896, Margaret B. McKee, wife of I. S. McKee, instituted an action in the Crittenden chancery court against John S. Toof, E. L. McGowan, John S. McTighe and Georgia E. McTighe, his wife, I. S. McKee, and J. H. Biscoe. The action was based upon a note for $2,432.35, executed by Toof, McGowan & Co. to Margaret B. McKee on the 7th of May, 1892, and made payable on the 1st of September, 1893, and the object of it was to recover a judgment against John S. McTighe for the amount due on the note, and to subject his interest in the Brinkley land to sale for the purpose of paying the judgment, such interest being one undivided half of the land.

Plaintiff sued out an order of attachment, and caused it to be levied upon McTighe's interest in the Brinkley land. The chancery court sustained the attachment, found the sum of $3,387.64 to be due on the note, and ordered that McTighe's interest in the Brinkley land be sold to pay the same. No personal judgment was rendered against McTighe, because he had been adjudged a bankrupt, nor was there any judgment rendered against Toof, McGowan & Co. McTighe and his wife appealed.

The indebtedness for which the note sued on was executed arose under the following circumstances: Toof, McGowan & Co. were merchants in Memphis, and John S. McTighe was a member of the firm. I. S. McKee and John S. McTighe were partners in business, and as such had to their credit on the books of Toof, McGowan & Co. $2,432.35, each being the owner of one-half of this fund. At the time the note was executed John S. McTighe was hopelessly involved in debt....