State Fair Association v. Terry

• Citation: 85 S.W. 87,74 Ark. 149
• Parties: STATE FAIR ASSOCIATION v. TERRY
• Decision Date: 04 February 1905
• Court: Supreme Court of Arkansas

85 S.W. 87

74 Ark. 149

STATE FAIR ASSOCIATION v. TERRY

Supreme Court of Arkansas

February 4, 1905

Appeal from Pulaski Chancery Court, THOMAS B. MARTIN, Chancellor.

Affirmed.

STATEMENT BY THE COURT.

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 the face of the bonds and in the deed of trust for declaring all due in case of default of 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 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 of 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; also 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 day 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 those to whom it may properly be decreed 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 owed 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 the court decreed that the Association pay to W. J. Terry, guardian of Joseph Townsend, within ninety 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 ninety 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 before 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 day of February, 1898, after the expiration of the ninety 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 final decree, and on the 6th of April, 1901, the cause was abated, and appeal dismissed in the Supreme Court 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 day 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 the 27th of June, 1902, filed an amended petition for leave to file a bill of review. The chancellor refused 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 afterward, 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, was 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 said bonds are in the possession of Geraldine H. Miller, claiming to own them in opposition to the claims of the Townsends, and that she had begun suit upon them, and to foreclose the mortgage, and in her bill swears she is the owner of them. That it was able to have paid the $ 9,232.02 decreed as belong to Joseph Townsend, but was unable to pay within ninety days the additional sum into the registry of the court for Joseph Townsend of $ 18,480.69, and that so much of that decree, as shown by this newly discovered evidence, was unjust and onerous, and would not have been made, had this evidence been before the court. That the parties owning said bonds were not parties to the suit, and the payment of that sum into the registry of the court would not have relieved the property from the mortgage, and that the Association was then unable to comply with the unjust decree as to the missing bonds, but was then and now ready to comply with it, so far as the terms apply to the bonds actually produced by Joseph Townsend. The petition further showed that the missing bonds in the hands of any other persons than the Towsends were barred by the statute of limitations, and the court erred in not so holding in the decree, and it was deprived of that defense, and this newly discovered evidence would have made it a complete defense to the decree based upon them.

The petition also contains this allegation: "and the plaintiff be now permitted to pay into court $ 9,232.02, and the interest thereon, less the reasonable rents and profits of the premises, which have been and now are in possession of W. J. Terry, as administrator of Joe Townsend, who departed this life since said decree was made." The amended petition (the one rested on) prayed leave to file the bill of review to review and set aside so much of the decree described, "and decreed that said Terry, as guardian was the owner of the sum found due on the missing bond," etc. This petition has this style: "State Fair Association of Arkansas, Plaintiff, v. Joseph Townsend et al., Defendants." The tendered bill of review has the same style; the defendants are not designated other than the proceedings of the former suit are fully set out, which, of course, describes the defendants therein. The prayer of the petition in the tendered bill of review, in substance, after the reversal of the former decree, is: that it be put into possession of the land, on paying W. J. Terry, as administrator of Joe Townsend, or such person or persons as may...