Purcell v. Gann

• Decision Date: 08 June 1914
• Docket Number: (No. 28.)
• Citation: 168 S.W. 1102
• Parties: PURCELL v. GANN.
• Court: Arkansas Supreme Court

168 S.W. 1102

PURCELL v. GANN.

(No. 28.)

Supreme Court of Arkansas.

June 8, 1914.

On Rehearing, July 6, 1914.

Appeal from Saline Chancery Court; Jethro P. Henderson, Chancellor.

Suit by James R. Purcell against D. Gann. From a judgment for defendant, plaintiff appeals. Affirmed.

This proceeding was instituted by James R. Purcell, within 12 months after attaining full age, to set aside a decree and to exercise his right to show cause against it in the cause of J. F. Shoemaker and D. Gann against James Purcell, Jr. The facts are as follows:

On the 5th day of February, 1891, James Purcell executed, in favor of McCarthy & Joyce, two mortgages. One of the mortgages was on certain lands in Saline county, Ark., and was given to secure a promissory note for the sum of $525, and also $5,000, more or less, to be furnished said mortgagor at his option. The other mortgage was on personal property, and was given to secure the sum of $525, and all other indebtedness which might be due the mortgagees on or before January 2, 1894, the date on which the promissory note for $525 was due. McCarthy & Joyce assigned both of said mortgages to the Bank of Commerce. On the 11th day of June, 1896, after the mortgages had become due, the bank instituted an action in the chancery court against James Purcell for the purpose of foreclosing said mortgages. On the 15th day of February, 1897, a decree of foreclosure was entered by the chancellor, and in it it was determined that James Purcell owed the bank the sum of $845, together with accrued interest. The decree declared that the amount found due was a lien on the land embraced in the mortgage, and a commissioner was appointed to sell the mortgaged premises in satisfaction of the debt. The commissioner's report of sale showed that on the 27th day of March, 1897, he sold a part of the personal property embraced in the mortgage for $22, and that he sold all the personal property that had been placed in his possession; that at the same time he sold all the lands mentioned in the real estate mortgage to James Purcell for $600; that James Purcell executed in his favor a note, with sureties, for the purchase money. On July 2, 1897, the report of the commissioner was approved by the chancery court, and a deed was ordered made to James Purcell when the purchase money was paid. On October 28, 1897, James Purcell, for the consideration of $200, assigned to Dewell Gann certain of the lands so purchased by him, and directed the commissioner to make a deed to Gann for the same. The commissioner executed the deed to Gann on the 26th day of November, 1897, and the same was approved in open court. On the 28th day of October, 1897, Purcell also made an assignment of certain of the lands so purchased by him to John F. Shoemaker for the consideration of $200, and the commissioner made a deed to him for the land embraced in the assignment, and this deed was likewise approved by the court. In 1893 James Purcell deeded the land which he had previously mortgaged to McCarthy & Joyce to his infant son, James R. Purcell, who was at the time about 2½ or 3 years of age. On April 21, 1899, Gann and Shoemaker filed a petition in the chancery court, alleging the mortgage foreclosure, the sale of the lands thereunder, the purchase of the same by James Purcell, the deed from him to his infant son, the respective assignments by James Purcell to them of his certificates of purchase at the sale under the mortgage foreclosure, and that they had paid off the judgment which had been declared a lien on said lands. The prayer of the complaint was that James Purcell, Jr., be made a party to the suit; that a guardian ad litem be appointed to defend for said minor; and that upon a final hearing of the cause his right of redemption be forever barred, and that the title to the lands be confirmed in the petitioners. A summons was duly issued, and the return on the same by the sheriff is as follows:

"I have this 21st day of April, 1899, duly served the within by delivering a copy of the within to James Purcell, Sr., and also giving a copy to James Purcell, for James Purcell, Jr., who is a member of his family over the age of 15 years, and his father, and at his usual place of abode."

An order was duly entered of record appointing a guardian ad litem to defend for the minor defendant, James Purcell, Jr. An answer was filed by the guardian which conformed to the statutory requirements.

Evidence was introduced by the petitioners tending to show that Purcell had transferred to them the certificates of purchase to the lands in controversy, and that they had paid the judgment which had been declared a lien on said land in the suit to foreclose the mortgage on same; that this had been done and the assignment made to them at the request of James Purcell, Sr., in order that he might save certain other lands for his minor son.

The chancellor entered a decree in favor of the petitioners. In it he found that subsequent to the execution of the mortgage by James Purcell, Sr., to McCarthy & Joyce, he had conveyed the land by deed to his infant son, James Purcell, Jr.; that at the foreclosure sale James Purcell, Sr., became a purchaser of the land, and transferred his certificate of purchase to certain of the lands embraced in the mortgage to the petitioners in consideration that they should pay off the judgment which had been declared to be a lien on the land; that this was done for the purpose of saving other of the lands which had been deeded by the father to his minor son; and that the consideration in said assignment was fair and reasonable. The decree further provided the time in which the minor defendant might redeem the land, and, in default of his so doing, confirmed the title thereto in the petitioners Shoemaker and Gann.

The chancellor entered a decree dismissing James R. Purcell's petition for want of equity, and he has appealed to this court.

J. S. Abercrombie, of Benton, for appellant. W. R. Donham, of Benton, for appellee.

HART, J. (after stating the facts as above).

The deed from James Purcell to his infant son, James R. Purcell, recited that it was executed in consideration of love and affection. It was made after the execution of the mortgage on the land by James Purcell to McCarthy & Joyce. Therefore the deed conveyed only the equity of redemption of James Purcell. James R. Purcell was not made a party to the proceedings to foreclose the mortgage on the land, and, having been omitted from the foreclosure suit, he still had the right to redeem from the foreclosure sale. Dickinson v. Duckworth, 74 Ark. 138, 85 S. W. 82, 4 Ann. Cas. 846. The decree in the case of Shoemaker and Gann against James R. Purcell, which was instituted in 1899, provided that the latter should have a designated length of time within which to redeem from the foreclosure sale, and that, if he failed to do so, the title to said land should be vested in Shoemaker and Gann. James R. Purcell failed to exercise his right to redeem. The condition of James R. Purcell as an infant appeared in the record in that action. The decree in the case divested him of an interest in lands, and he therefore had a right to show cause against the decree within 12 months after arriving at full age, as prescribed in section 6248 of Kirby's Digest. Paragould Trust Co. v. Perrin, 103 Ark. 67, 145 S. W. 886.

Section 734 of Kirby's Digest provides that when one conveys land by deed purporting to convey a fee-simple estate, and does not own the land at the time, but afterwards acquires the title, such after-acquired title, whether legal or equitable, passes...