Winters v. Fain

• Decision Date: 30 October 1886
• Citation: 1 S.W. 711,47 Ark. 493
• Parties: WINTERS ET AL. v. FAIN
• Court: Arkansas Supreme Court

1 S.W. 711

47 Ark. 493

WINTERS ET AL. v. FAIN

Supreme Court of Arkansas

October 30, 1886

APPEAL from Lincoln Circuit Court in Chancery, Hon. J. A. WILLIAMS Circuit Judge.

Decree affirmed.

D. H Rousseau for Appellants.

Preddy's answer was a set-off and counter-claim, and should have been denied by Fain. Not being so denied, Preddy was entitled to a decree for the amount claimed in his answer. 27 Ark. 490; 43 Ark. 427; Mansf. Dig., secs. 504-8.

It was not necessary for Preddy to move for a decree. It was the duty of the court to render judgment on the counter-claim.

The note was not a lien on the land. None was expressed on the face of the note, or reserved in the deed, and this case falls within the rule in Harris v. Hanie, 37 Ark 348; 3 Mylne & K., 655.

J. M Cunningham and U. M. & G. B. Rose for Appellee.

It is objected that there was no reply to the counter-claim of Preddy. No reply was necessary, because Preddy had no counter-claim, but only an answer. Where the parties go to trial, and take evidence as though the issues were entirely made up, they cannot raise the objection to the imperfections of the pleadings for the first time in this court. Hanks v. Harris, 29 Ark. 323; Stidham v. Matthews, Id., 658; St. L., I. M. & S. Ry. v. Harper, 44 Ark. 524; Sorrels v. Self, 43 Ark. 451; Healey v. Connor, 40 Ark. 352.

Winters' plea of innocent purchaser is bad, because it does not deny notice down to the time of the payment of the purchase money. Byers v. Fowler, 12 Ark. 286; Whiting v. Beebe, Id., 552; Duncan v. Johnson, 13 Id., 190; Gerson v. Pool, 31 Id., 87; Allen v. McGaughey, Id., 259; Pearce v. Foreman, 29 Id., 568; Miller v. Fraley, 21 Id., 35; Massie v. Enyart, 32 Id., 257; Tuley v. Ready, 27 Id., 102. There is nothing in the point that the provision in the note allowing it to be paid in attorney's fees prevents the existence of the vendor's lien. That provision did not affect the nature of the obligation, but only gave an alternative method for its discharge. Harvey v. Kelley, 41 Miss. 490.

OPINION

SMITH, J.

Fain alleged in his bill that he had sold and conveyed to Preddy a lot in Star City, for $ 500; whereof one-half was paid down, and for the remainder the following note was made: "250. August 5, 1879. Sixteen months after date I promise to pay to the order of John M. Fain, for lots purchased from him this day, two hundred and fifty dollars, in fees as attorney for said J. M. Fain, provided his business amounts to so much; otherwise balance to be paid in currency. Chas. W. Preddy."

That $ 183 still remained due and unpaid on the note; and that Preddy had re-sold the land to Winters, who, however, had bought with full knowledge of the plaintiff's equities. The prayer was for judgment against Preddy and for a fore-closure of the vendor's lien.

Preddy answered, alleging, first, that Fain owed him $ 37.50 for rent, having occupied the premises three months after he had sold them; second, that Fain owed him $ 360.87 for attorney's fees; third, that Fain put into his hands for collection some claims on which his fees would have been $ 130.58, and had withdrawn them without cause; and fourth, that he knows not whether Winters bought with notice or not.

Winters, in his answer denied notice, but admitted in effect that he knew, at the date of his purchase, that the note copied above was outstanding, and that the consideration for its execution was the sale of the lot.

There was a reference to a master to take and state an account between Fain and Preddy. The master reported a balance of $ 156.86 due the plaintiff. This amount was reduced, on exceptions, by the sum of $ 25, and judgment was given for the residue, and the sale of the lot ordered.

The defendants have appealed, and now urge, as ground of reversal, that the plaintiff had no lien. He had made a deed which contained no reservation of a lien. It is true that the vendor's equitable lien exists only as a security for the...