State Fair Ass'n v. Terry
| Decision Date | 04 February 1905 |
| Citation | 85 S.W. 87 |
| Parties | STATE FAIR ASS'N v. TERRY et al. |
| Court | Arkansas Supreme Court |
Petition for leave to file bill of review by the State Fair Association against W. J. Terry, guardian of Joseph Townsend, and others. From a decree denying such relief, petitioner appeals. Affirmed.
On the 12th of February, 1894, the State Fair Association, hereinafter called the "Association," filed its complaint in the Pulaski chancery court against Joseph Townsend and W. J. Terry, his guardian, Sarah Townsend, legatee of Miles Q. Townsend, deceased, C. F. Penzel, W. B. Worthen, the Little Rock Jockey Club, and the Southern Cotton Oil Company. The object of the suit was the redemption of certain real estate known as the "Fair Grounds." In 1882 the association had executed to Chas. F. Penzel, one of the defendants, a deed of trust on this realty to secure an issue of $15,000 of bonds. The bonds were negotiable bonds, running ten years, with the usual clause in face of the bonds and in the deed of trust, declaring all due in case of default in interest, and power was given the trustee to foreclose on default. The complaint alleged that M. Q. Townsend, father of Joseph Townsend, and James H. Hornibrook, as partners, under style of Hornibrook & Townsend, were owners of certain of the bonds, and, default being made in the conditions thereof and of the deed of trust, exercised their right of sale under the trust deed, and undertook to make a sale of the realty, and under the sale went into possession of it; that the sale was void; and that the purchasers were in possession as mortgagees, and the association had a right to redeem. It further alleged that the bonds were outstanding and in possession of some persons to the association unknown, but it was informed and believed that Joseph Townsend and Sarah Townsend have or claim some right or interest therein as legatees of the late M. Q. Townsend, and the defendant Worthen had the custody and control of some of the bonds. The prayer was to the effect that the defendants be required to answer and file their bonds for inspection; that the amount due from the association be ascertained, in order to enable it to pay the same into court and redeem the property from the mortgage deed. It also prayed that the defendants jockey club and oil company be required to answer, and show by what right and title they, and each of them, held certain parts of the property. This suit proceeded to judgment on the 22d of July, 1896, when it was decreed that the association had the right to redeem the property from the lien of the deed of trust to Penzel by the payment of such sums as may be necessary to discharge the costs and the amounts equitably due on the bonds, to the proper use of whom it may properly be deemed that such sums equitably belong. A master was appointed to state an account between the Townsend interests and the association arising out of the use, rents, and occupancy of the property by the Townsends, and to ascertain the whereabouts or disposition made of the bonds issued by the association, and who owns them; and ample authority was given him to take testimony to develop the various matters submitted to him. Further proceedings were had in the suit, which culminated in a final decree on the 4th of November 1897, wherein it was decreed that the association pay to W. J. Terry, guardian of Joseph Townsend, within 90 days, the sum of $9,232.02, with interest, which sum was the amount due Townsend after an accounting of the rents, etc., upon $7,400, face value, of the original bonds, which were produced in court; that the association pay into the registry of the court within 90 days the sum of $18,480.69, the amount which is found and reported by the master to be due Joseph Townsend for principal and interest on the full value of $7,600 of bonds, therein designated by number, which were not produced by the defendants, or any of them, and not shown to be in their present control, which sum was ordered to remain in the registry of court, subject to such further orders as may be just, proper, and equitable. It was further ordered that, if the association failed to pay these sums within the time given, the complaint be dismissed, and upon such payment the mortgage lien be discharged, and possession given the association, and the cause was retained for such further orders as might be necessary for the enforcement of the decree. On the 9th of February, 1898, after the expiration of the 90 days, the defendants made a showing to the court that neither the amount ordered paid Terry, as guardian, nor the amount ordered paid into court, in order to redeem, had been paid; and the court, finding this to be true, adjudged the dismissal of the action to redeem, at the costs of the association. The association appealed from the formal decree, and on the 6th of April, 1901, the cause was abated, and appeal dismissed, in the Supreme Court (63 S. W. 65), because proper steps had not been taken to revive the cause within the time prescribed by law against the representatives of Joseph Townsend, who had died after the said decree was rendered. On the 23d of May, 1902, the association filed a petition for leave to file a bill of review of the final decree of November 4, 1897, and on 27th of June, 1902, filed an amended petition for leave to file a bill of review. The chancellor refused leave to file the bill of review, and from the order of court denying the petition to file the bill of review the association prosecuted this appeal.
The amended petition for leave to file the bill of review embodied the allegations of the bill, which was tendered and was supported by affidavits, the substance, omitting a recital of the former proceedings, was that pending the appeal Joseph Townsend died intestate, leaving his mother and several half brothers and sisters surviving him, as was discovered long afterwards, but whose whereabouts were unknown to the association, and were not discovered by the association in time to revive the suit against them in the Supreme Court, and make them parties thereto; that, when their residence and names were ascertained, it was too late to revive the suit against them, and, without fault, the association was deprived of an opportunity to have the errors alleged to have been in the decree corrected. The alleged errors were of law arising from the facts in evidence, and not errors of law apparent on the face of the proceedings. The petition then proceeds to allege that, at the time of the rendition of the decree, the sum for the "missing bonds," as they are denominated in these proceedings, representing the $18,480.69 ordered paid into the registry of the court, were the property of other persons, and not of Joseph Townsend, and that fact was known, or ought to have been known, to Townsend and Terry, his guardian, and was unknown to the association, although it and the master of the court had exercised diligence in trying to ascertain the true ownership and location of said missing bonds; that recently, and within six months, the association had discovered new evidence by which it is able to prove that, at the time said decree was made, the missing bonds were not owned by the estate of M. Q. Townsend, nor any of the legatees of Townsend, nor any of the defendants in the suit; that it is able to prove that the...
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