Smith v. Moore

• Decision Date: 23 April 1887
• Citation: 4 S.W. 282
• Parties: SMITH, Trustee, etc., <I>v.</I> MOORE, Trustee, etc.
• Court: Arkansas Supreme Court

4 S.W. 282

SMITH, Trustee, etc.,

v. MOORE, Trustee, etc.

Supreme Court of Arkansas.

April 23, 1887.

Appeal from circuit court, Lee county.

Tappan & Hornor, for appellant. James P. Clarke, for appellee.

BATTLE, J.

On the seventeenth of April, 1885, one J. F. Asher executed and delivered to the appellant, Smith, a deed of trust whereby he conveyed certain personal property and crops to secure an indebtedness owing to one L. A. Fitzpatrick, and payable on the fifteenth of October, 1885. On the same day he also executed and delivered to the appellee, Frierson Moore, a deed of trust whereby he conveyed the same property to secure an indebtedness due and payable to John P. Moore on the first of November, 1885. The deed to Smith was first filed for record in the county wherein the grantor resided, and the lien thereof became prior in law to that of the deed to Moore. Asher made default in the payments secured by these deeds, and was permitted to remain in possession of the property thereby conveyed. This default continued until the twenty-second of February, 1886, when Frierson Moore brought this action against Asher, in the Lee circuit court, to recover possession of certain of the property conveyed in trust to him. He executed to the proper officer the bond required by law, and the officer, in accordance with the order of delivery in his hands, took from the possession of the defendant Asher seven mules and one thousand bushels of corn, and upon the execution of a bond to the plaintiff, by John C. O. Smith and L. A. Fitzpatrick, sureties, "to the effect that the defendant shall perform the judgment of the court in the action," the property was released from the custody of the officer, and delivered to Smith by the direction of the defendant Asher. On the twenty-eighth of March, 1886, Smith filed an application to be made a party, and therein alleged that on the seventeenth of April, 1885, the defendant Asher executed to him a trust deed of the property seized by the sheriff under the order of delivery issued in this action; that the lien of the conveyance to him was prior to that under which plaintiff claimed the right of recovery; that, by virtue of the deed to him, he was the owner of the property in controversy, and entitled to the possession of the same; and that there was at that time pending in the Phillips circuit court another suit for the same cause of action, and between the same parties. On the twenty-eighth of April, 1886, the application of Smith came on for hearing, and, on the objection of the plaintiff, the court refused to make him a party and struck his application from the files of the court. Thereupon judgment by default was rendered against the...