Wade v. Deniston

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Wade v. Deniston, 21 S.W.2d 424, 180 Ark. 326 (Ark. 1929)
• Decision Date: 11 November 1929
• Docket Number: 185
• Parties: WADE v. DENISTON

21 S.W.2d 424

180 Ark. 326

WADE v. DENISTON

No. 185

Supreme Court of Arkansas

November 11, 1929

Appeal from Ouachita Chancery Court, First Division; J. Y. Stevens Chancellor; judgment modified and affirmed.

Decree affirmed.

Saxon Wade & Warren and R. K. Mason, for appellant.

Arthur D. Chavis, for appellee.

OPINION

SMITH, J.

Drucilla Newton successfully prosecuted a suit to cancel a deed which she had executed to Robert Deniston. The deed canceled conveyed an interest in oil royalties, and, as an incident to this relief, judgment was rendered against Deniston for $ 686.98, covering the amount of royalties collected prior to the cancellation of the deed. Deniston v. Newton, 175 Ark. 1169, 300 S.W 929.

An execution issued upon this judgment, directed to the sheriff of Ouachita County, but a return nulla bona was made. Later a second execution was also directed to the sheriff of Ouachita County, which was levied upon a one sixty-fourth interest owned by Deniston in the royalty derived from a two-acre oil lease, and at the sale under this execution Mrs. M. L. Wade became the purchaser of the interest sold for $ 50. The costs incident to the sale, amounting to $ 26.50, were first deducted, and the balance of $ 23.50 was paid to the plaintiff by the husband of the purchaser, who was the plaintiff's attorney, and the amount thereof was credited on the judgment. The property sold under this execution was in Ouachita County, and Deniston resided in Jefferson County, and had no notice of the sale until after it had been made.

A third execution issued, which was directed to the sheriff of Jefferson County, and a stay bond was given in satisfaction of it, and, when this bond was not paid at its maturity, a fourth execution issued, which was directed against the sureties on the stay bond, and this execution was satisfied by paying the amount of the third execution, and all costs and interest.

Upon selling the royalty interest in the two-acre lease the sheriff executed, on the date of the sale, a certificate of purchase, but, having concluded that a deed was necessary to convey the interest sold, he declined to acknowledge the instrument until the year allowed by law for redemption from execution sales of real estate had expired, and, a year and two days later, he acknowledged the instrument as a deed, after changing the date thereof.

Deniston brought this suit to cancel the execution deed, and to recover royalties from certain oil companies. The court found the fact to be that Deniston's interest in the two-acre lease was worth as much as $ 500, and we think this finding is not contrary to the preponderance of the evidence, as Deniston's interest in the royalties amounted to about $ 20 per month. The court also found that there were "other circumstances" which rendered it inequitable for the sheriff's sale to stand, and the execution deed was...