Van Pelt v. Russell

• Decision Date: 29 April 1918
• Docket Number: (No. 328.)
• Citation: 203 S.W. 267
• Parties: VAN PELT v. RUSSELL. RUSSELL v. VAN PELT.
• Court: Arkansas Supreme Court

203 S.W. 267

VAN PELT v. RUSSELL.

RUSSELL v. VAN PELT.

(No. 328.)

Supreme Court of Arkansas.

April 29, 1918.

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Two actions by H. R. Russell, as receiver in foreclosure in one, and as administrator of the estate of D. M. Doyle, deceased, in the other, against J. B. Van Pelt. Judgment for plaintiff on the first, and for defendant on the other, and both appeal. Each case reversed and remanded.

Different issues are involved in the appeals in these two cases, but inasmuch as they arise from the same transaction and are dependent upon the same facts one statement of facts will suffice for both cases, and the opinions may be written together.

In December, 1912, J. B. Van Pelt, being indebted to D. M. Doyle in the sum of $2,000, executed his note therefor, and to secure the payment of said note he executed a mortgage on 200 acres of farm land in White county. At the same time, to further secure the note, he executed a mortgage to Doyle on certain personal property. In July, 1913, D. M. Doyle departed this life intestate. In October, 1915, T. J. Loudermilk, the administrator of the estate of D. M. Doyle, deceased, brought suit in equity against J. B. Van Pelt to foreclose the mortgage on the real estate. In a short time thereafter H. D. Russell, who had married the widow of D. M. Doyle, was appointed administrator in succession of the estate of D. M. Doyle, deceased, and was substituted as the plaintiff in the foreclosure suit. In April, 1916, Russell was appointed receiver in the foreclosure suit and ordered to take charge of the land involved therein. He was directed to rent the land, to collect the rents therefrom, and to make his report thereof to the chancery court at its December term. J B. Van Pelt was in possession of the land. Russell went to him and demanded possession of the land or that he pay him rent therefor. Van Pelt refused to deliver him possession of the land and also refused to pay him rent. He claimed that he was entitled to the possession of the land himself. Every time Russell approached Van Pelt on the subject, Van Pelt told him that the land belonged to him and that he would not pay him any rent.

In October, 1916, the chancery court rendered a judgment in favor of the plaintiff in the foreclosure suit for the sum of $3,100 against Van Pelt, and also decreed that the land be sold for the payment thereof. On the 21st day of October, 1916, H. D. Russell, as receiver, instituted a suit in the circuit court against Van Pelt to recover $300, alleged to be the amount of rent due on the land for the year 1916, and asked that a landlord's attachment be issued and levied on the crop. In February, 1917, there was a sale of the land under the foreclosure decree and the land was bid in by Russell for the sum of $2,150. About the 1st of June, 1917, H. D. Russell, as administrator of the estate of D. M. Doyle, deceased, instituted an action in replevin against Van Pelt to recover possession of the personal property embraced in the chattel mortgage for the purpose of foreclosing it for the balance due on the mortgage indebtedness.

In the landlord's attachment suit the circuit court was of the opinion that the plaintiff was entitled to a verdict, and instructed the jury to find for him in whatever amount the proof showed the value of the rent to be for the year 1916. In the replevin case the court was of the opinion that a verdict should be directed in favor of the defendant, for the reason that an itemized account had not been made and delivered to the defendant by the plaintiff before the suit was brought. Both cases are here on appeal.

J. N. Rachels, of Searcy, for appellant. Brundidge & Neelly, of Searcy, for appellee.

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

In the attachment case the record shows that an application was made for the appointment of a receiver to take charge of the land involved in the foreclosure suit; that H. D. Russell was appointed as such receiver for the purpose of renting the land and collecting the rents therefrom. These facts are shown by the order appointing him as receiver. The record also shows that he entered upon the discharge of his duties as such receiver and demanded that Van Pelt should pay him the rent for the land for the year 1916; that Van Pelt was in possession of the land and refused to pay rent therefor to...