Mehr v. Cole
| Decision Date | 31 March 1888 |
| Citation | 7 S.W. 451 |
| Parties | MEHR <I>v.</I> COLE. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Craighead county; J. E. RIDDICK, Judge.
Action of ejectment, brought by Nettie Mehr against H. M. Cole, to recover possession of certain lands formerly owned by plaintiff's father. Defendant claims through a sale of the land under a decree of the circuit court. The court subsequently held the decree void as to this plaintiff, and refused to give effect to defendant's deeds. Both sides appeal.
E. F. Brown, for plaintiff. W. H. Cate and J. C. Hawthorne, for defendant.
Both the plaintiffs and defendant have appealed in this cause. Each side was asking affirmative relief in the trial court, but, if there was the same confusion in the record when the cause was heard as exists in the transcript which is certified here, neither could have complained if the court had refused all relief. Dates are matters of some importance in the litigation, but, according to the record almost every event, from the birth of the parties to the entry of the final decree, occurred "on the ____ day of ____, 18__." It is not even certain who are the plaintiffs in the litigation. The action was ejectment by Nettie Mehr, who claimed to be the sole heir at law of F. M. Burk, who died seized and possessed of the land; but, in the final disposition of the case, John and James Burk appear as Nettie Mehr's coplaintiffs. How they got into the cause, or what interest they have in the land, is not disclosed. The defendant, Cole, admits that the title to the land was in F. M. Burk at the time of his death, but claims that the title of his heirs, as to a part of it, was divested by sale under a decree of the Craighead circuit court condemning the lands to be sold for the unpaid purchase money due from F. M. Burk, and that the other tract was purchased by him at a sale under an execution which issued upon the same decree. This decree is exhibited, and is entitled "G. B. Dickinson, as Administrator of Michael Dickinson, Deceased, Plaintiff, v. James N. Burk, as Guardian ad litem of Minor Heirs of F. M. Burk, Deceased." It recites that service was had upon the "minor heirs of F. M. Burk," but there is no other designation of the defendants in the decree. No other part of the record in that cause was introduced as evidence in this, and there is nothing to show the identity of the plaintiffs in this action of ejectment with the defendants in the foreclosure suit. We are perhaps apprised that Nettie Mehr, who is a married woman, is the daughter of F. M. Burk; but whether she was a minor when the decree was rendered, and was represented by J. N. Burk, who is described as the guardian ad litem of minor heirs of F. M. Burk, we cannot tell; nor have we any means of determining whether the other plaintiffs are heirs of F. M. Burk, and of the number who were served with process in that case. The court, on the trial, held the decree void as to these plaintiffs, and refused to give effect to the defendant's deeds. We cannot say, upon this state of the record, that that was error; but the cause was transferred to the equity docket, upon the defendant's prayer to be subrogated to the right of Dickson's administrator to enforce the payment of the vendor's lien for the purchase money, which he alleged he and his vendors had discharged by the payment of their bids at the commissioner's and sheriff's sales; and the court, finding that the amount of purchase money due for the lands was a lien thereon, and that the plaintiff, or those to whose rights he had succeeded by conveyance, had discharged the lien, entered a decree for the defendant, condemning the land to be sold to repay the purchase money paid by him and his vendors.
Though there is some conflict in the adjudged cases on the subject, we entertain no doubt but that one whose bid at a void...
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