3. DRAINS (§ 91*)-DRAINAGE DISTRICTS-DE- The defendants answered, denying speLINQUENT DRAINAGE TAXES-COLLECTION- cifically each of the alleged grounds of inVACATION OF DECREE. The provision in Acts 1909, p. 710, § 3, validity set up in the complaints, and averamending Acts 1905, p. 437, § 11, that at any ring that the decree of the chancery court time within three years after final decree under and all the proceedings thereunder condemnwhich a sale is made for delinquent taxes the owner may file his petition in the court rendering the lands to be sold were in all things ing the decree, alleging payment of the taxes, and, on the establishment of that fact, the court shall vacate the decree, provides a remedy for an attack on a decree of the chancery court ordering a sale of land for delinquent drainage taxes where the taxes have been paid, and an owner paying drainage taxes is entitled to have a decree directing a sale of land for delinquent taxes set aside and deeds executed in pursuance thereof canceled. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 53, 82, 102, 103; Dec. Dig. § 91.*] Appeal from Clay Chancery Court; Chas. D. Frierson, Chancellor. Consolidated suits by G. W. Sanders and another and by D. V. Glover and another and by Alvis Hogan and others against W. H. O'Barr and another. From a decree granting relief to complainants, defendants appeal. Affirmed in part, reversed and remanded, with directions, in part. On August 13, 1912, G. W. Sanders and J. F. Ogles filed their complaint against W. H. O'Barr and C. C. Jarrett; on August 31, 1912, D. V. Glover and Paul M. Will filed their complaint against the same defendants; and on September 8, 1912, Alvis Hogan, Russ Howerton, Charley Hayden, W. R. Winn, and Albert Vincent filed their complaint against the same defendants, all in the chancery court for the Eastern district of Clay county, Ark., to quiet title to several tracts of land, described in their respective complaints. Sanders and others claimed to own lots 10, 11, and 12 in block 1, Wright's addition to the town of Rector, Ark., Glover and others claimed to own the north 1⁄2 of the northwest 1/4 of section 31, township 19 north, range 8 east. Vincent and others claimed to own the east 2 of the northwest 4 of section 33, township 19 north, range 8 east. The complainants set up that the several lots and tracts of land owned by them respectively were sold on June 4, 1910, under an order of the chancery court condemning the lands for sale for delinquent drainage taxes, penalty, and costs for the years 1905, 1906, and 1907; that the lands were bought by O'Barr; that the deeds executed to O'Barr and approved by the court making the sale were void, and were clouds on plaintiffs' title, for the following reasons: (Here 17 different grounds were given as reasons for avoiding the sale made for the drainage taxes.) The eleventh reason set out was as follows: "The commissioner's deeds are void because the taxes for which said lands were condemned and sold were not delinquent but had been paid." regular and valid. The decree condemning the lands to be sold was rendered at the April term, 1910, of the Clay chancery court, and the deeds were approved in November 22, 1911. Glover testified that he paid drainage taxes, and exhibited receipts showing the payment of such taxes for the years 1905, 1908, 1909, 1910, and 1911 on the north of the northwest 4 of section 31, township 19 north, range 8 east. One Seitz testified that he was secretary of the St. Francis drainage district during the years 1905, 1906, and 1907, and that the taxes for 1905, 1906, and 1907 were all in the same book. 1906 and 1907 were made out together and The two years' taxes of levied together; the taxes were assessed jointly for the two years. This book shows that the assessment for the year 1905 of $4 on above tract was paid November 18, 1906. The assessment of 1905 was also paid on the east 2 of the northwest 4 of section 33, township 19 north, range 8 east, on October 23, 1906. The assessment for 1906 and 1907 on the above tracts of land as shown by the list or book was not paid. This book was the only book furnished the treasurer, and contained the only list showing what lands were assessed and the amount of the assessments. It also showed that the assessment against lots 10, 11, and 12, Wright's addition to the town of Rector for the years 1905, 1906, and 1907 had not been paid. If the taxes for the years specified had been paid the books would show it. Witness Hogan testified that he paid taxes on the east 2 of the northwest 4 of section 33, township 19 north, range 8 east, both general and special, for the year 1907. He got the receipt. He paid the drainage taxes, and the receipt for this was separate from the general tax receipt. His attention was called at the time to pay his drainage taxes, and the collector was there at Rector, and he went in and paid them. The tax receipt was deposited in the Rector bank. When he went to get the receipts some of his papers had been misplaced and he could not get them. The above was substantially the evidence on behalf of plaintiffs below, appellees here. The evidence on behalf of the defendants below, appellants here, consisted of the record of the proceedings of the chancery court for the Eastern district of Clay county in the case of St. Francis drainage district against delinquent lands, in which the lands It is unnecessary, in the view we take, to in controversy were condemned and sold for set forth the other grounds alleged. the delinquent drainage taxes for the years For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 1905, 1906, and 1907. The record showed the complaint against the lands in controversy, the notice, proof of publication, the decree, the commissioner's report showing the sale of the lands, and the approval thereof, and the deeds to O'Barr, and the approval thereof by the chancery court. The decree in the present case recites that the three cases were consolidated and tried together, and the chancellor found in favor of the plaintiffs below, and entered a decree canceling the commissioner's deeds to O'Barr, giving him a lien for the taxes, penalty, and costs that had been paid by him. To reverse that decree this appeal has been duly prose cuted. Johnson & Burr, of Paragould, for appellants. Lafayette Hunter, of Piggott, and M. P. Huddleston and Robert E. Fuhr, both of Paragould, for appellees. WOOD, J. (after stating the facts as above). [1, 2] I. This suit, as to all the grounds alleged for invalidating the deeds of the commissioner except that the taxes were paid, was a collateral attack on the decree of the chancery court condemning the lands to be sold. See Hall v. Morris, 94 Ark. 519, 127 S. W. 718; Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836; Beck v. Anderson-Tulley Co., 169 S. W. 246. The record of the proceedings of the chancery court under which the lands in controversy were condemned and sold for delinquent drainage taxes shows that those proceedings were in all things regular and according to Act No. 172 of the Acts of 1905, as amended by Act No. 235 of the Acts of 1909. There is nothing on the face of the proceedings, as shown by this record, evidencing a want of jurisdiction in the chancery court to decree a sale of the lands in contro versy. It is clear that Act No. 235 of the Acts of 1909 did not intend to abolish any causes of action that had accrued and that were then in existence for the delinquent taxes of prior years. But the act of 1909 was intended to furnish the remedy that should thereafter be pursued for the collection of all delinquent taxes, no matter for what year the same had accrued. Since the proceedings of the chancery court condemn ing the lands in controversy were regular on their face, and did not show any want of jurisdiction in the chancery court, all the matters alleged in the complaints of the appellees as grounds for invalidating the sale made under the order of the chancery court and the deed of the commissioner in pursuance thereof cannot avail here; because, the chancery court having jurisdiction, its decree, as to all things necessary for adjudication before the rendition thereof, cannot be overcome and set aside by this collateral attack. See Lumber Co. v. McDougal, supra. It will thus be seen that the act itself provides a direct method for an attack on the lands for sale where the "taxes have been the decree of the chancery court condemning they were sold." Under this provision appelpaid on the lands for the year for which lants were entitled to have the decree set aside, and the deeds made in pursuance thereof canceled, as to those tracts of land where they showed that the taxes were paid for the years for which they were sold. The chancellor was warranted in finding, under the testimony set forth in the statement, that the taxes were paid on the east 12 of the northwest 4 of section 33, township 19 north, range 8 east, for the years 1905, 1906, and 1907. But as to the other tracts in controversy there is no testimony to contradict or rebut the testimony of the witness to the effect that the taxes on these tracts were not paid for all the years for which they were sold. The decree of the chancery court, therefore, will be affirmed as to the east 1⁄2 of the northwest 4 of section 33, township 19 north, range 8 east; but as to the other tracts it will be reversed and remanded, with directions to enter a decree dismissing the appellees' complaints for want of equity. AMERICAN INS. CO. v. McGEHEE LIQUOR CO. (No. 66.) (Supreme Court of Arkansas. June 29, 1914.) 1. JUDGMENT (§ 843*)—ASSIGNMENT—AssignABILITY OF JUDGMENT OF SUPREME COURT. Though Kirby's Dig. § 4457, requiring the sale of a judgment of a court of record or of any cause of action after suit is brought to be evidenced by a written transfer which may be filed with the papers of the suit and noted on the record where the judgment is recorded, does not authorize the assignment of a judgment of the Supreme Court, the rights of the judgment creditor can be transferred so as to carry the right to enforce the judgment in the name of the assignor; the assignment not vesting the legal title in the assignee. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1539; Dec. Dig. § 843.*] 2. JUDGMENT (§ 847*)-ASSIGNMENT-RIGHTS OF ASSIGNEE AS TO JUDGMENT DEBTOR. A judgment is not negotiable, and the assignee takes the assignment subject to all the equities between the parties to the judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1548-1555; Dec. Dig. § 847.*] 3. EXECUTION (§ 161*)-QUASHING-GROUNDS. The Supreme Court, in the exercise of its inherent power to control its own judgments and process, may quash an execution issued by its For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes clerk to enforce one of its judgments upon proof of payment of the judgment; this not being an exercise of original jurisdiction. and recovered judgment in the trial court against all of them. A supersedeas bond on appeal to this court was executed, and petitioners, A. B. Poe and A. J. Graham, signed the bond as sureties. When the cause was [Ed. Note. For other cases, see Execution, Cent. Dig. 88 467-471; Dec. Dig. § 161.*] 4. APPEAL AND ERROR (§ 1236*) SUPERSEDEAS BOND-LIABILITIES ON-JUDGMENT heard here the judgment against the sureties IN SUPREME COURT. on the original bond of the insurance comWhere, in an action on drafts on an in-pany was reversed, and the cause was dissolvent foreign insurance company for the missed as to them, but the judgment against amount of a loss against the company, the sureties on the statutory bond given to authorize it the insurance company and Poe and Driver to do business, and the indorsers of the drafts, as indorsers of the draft was affirmed, and a judgment for plaintiff was reversed as to the the judgment was also rendered against Poe sureties on the statutory bond and affirmed as to the indorsers, and judgment was also rendered and Graham as sureties on the supersedeas against the sureties on the supersedeas bond, bond. American Ins. Co. v. McGehee Liquor one of whom was also an indorser, the Supreme Co., 93 Ark. 62, 124 S. W. 252, 20 Ann. Cas. Court, on a motion to quash an execution on 855. its judgment on the ground that one of the sureties on the statutory bond had paid the judgment, but taken an assignment thereof instead of satisfying it, could not adjust the equities between the moving parties and the sureties, as this relief must be sought in a court of original jurisdiction, especially where a suit for such relief was pending in the chancery court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4778-4784; Dec. Dig. 8 1236.*] 5. EXECUTION (§ 171*)—ENJOINING ENFORCEMENT OF GROUNDS. The court of chancery in a suit in which it has acquired jurisdiction over all of the parties to a Supreme Court judgment may prevent the enforcement of such judgment; since, while it cannot coerce the officers of the Supreme Court, it may prevent the parties thereto from enforcing the judgment. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.*] Action by the McGehee Liquor Company against the American Insurance Company and others. A judgment for plaintiff was affirmed as to certain of the defendants (93 Ark. 62, 124 S. W. 252, 20 Ann. Cas. 855) and A. B. Poe and another, sureties on the supersedeas bond, move to quash an execution upon such judgment. Motion overruled without prejudice. PER CURIAM. This is a proceeding instituted here by two judgment debtors moving the court to quash an execution issued by the clerk of this court, on the ground that the judgment has been satisfied. They also ask that assignments of the judgment by the original judgment creditor and its assignee be stricken from the files. The American Insurance Company was doing business in Arkansas, and gave bond in accordance with the statute, signed by petitioner A. B. Poe and certain others. The McGehee Liquor Company sustained a loss under a policy, which was adjusted, and the adjuster gave a draft on the home office in another state, and the draft was indorsed by petitioner Poe and John B. Driver. Before the draft could be presented for collection the insurance company became insolvent and passed into the hands of a receiver. The policy holder instituted an action against the company and the indorsers on the draft, and also against the sureties on the bond, The petitioners, Poe and Graham, allege in their petition or motion, now filed, that shortly after the affirmance of the judgment an execution was sued out by the judgment creditor, but that said execution was paid, either by the American Insurance Company or by one of the sureties on the bond. In a supplemental petition it is alleged that the payment was made by W. B. Calhoun, and that the judgment was assigned to him by the plaintiff, and that he assigned it to the German Investment Company. It is further alleged that one of the attorneys for the judgment creditor, instead of having the execution returned satisfied, "caused the same to be returned unsatisfied, and then proceeded to secure the said McGehee Liquor Company to assign said judgment to the corporation named, the German Investment Company, and that this was done purpose of defrauding the petitioner" and preventing him from enforcing his right of subrogation against the sureties for amounts that he had paid out for the insurance company on other judgments. There are other allegations in the motion unnecessary to recite. for the The response contains a general denial that the judgment has been satisfied, and contains also denials of the other allegations of the petition, except the written assignment set forth therein. But it contains the statement also that, after the case had been appealed to this court, and before the reversal of the judgment as to the sureties, a writ of execution was issued from the Pulaski circuit court to the sheriff of Mississippi county against W. B. Calhoun, and that Calhoun, "to prevent the levy or sale of his property, satisfied said execution, and the judgment was assigned to him, appears upon the margin of the record of said judgment." The records of this court show the assignment made by the plaintiff to the German Investment Company and the subsequent assignments. * as It is argued in the first place that the assignments should be stricken from the files because there is no statutory authority to assign a judgment of this court, or to place an assignment upon the files of this court. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [1] It is quite true that there is no statute | seeking to have the petitioners' rights of authorizing an assignment of a judgment of contribution enforced and the judgment staythis court, the only statute on the subject of assignment of judgments being one which relates to the assignment of causes of action as well as, of judgments rendered thereon. Kirby's Digest, § 4457. We have held that that statute has no reference to cases pending in this court. Railway Co. v. Hambright, 87 Ark. 242, 112 S. W. 876. But, aside from any statute on the subject, the rights of a judgment creditor can be transferred to another so as to carry the right to en.orce the judgment. Such assignment does not vest the legal title in the assignee, but he can enforce the judgment in the name of his assignor. 2 Black on Judgments, §§ 940, 948; 2 Freeman on Judgments, § 421. [2] A judgment is not negotiable, and, of course, the assignee takes the assignment subject to all the equities between the parties to the judgment. 2 Freeman on Judgments, § 427. It would not, therefore, be proper to strike out the assignments unless it is shown that the judgment has been satisfied. There is, as before stated, an allegation in the petition to the effect that the judgment has, in fact, been paid and satisfied; but that is denied, and the record shows an assignment of the judgment by the judgment plaintiff. [3] This court has power over its own process, and it would be proper for this court, upon proof of payment of the judgment, to make an order quashing any process erroneously issued thereon. That is not the exercise of original jurisdiction, but is merely the exercise of powers which courts herently possess in the control of their own judgments and process. 17 Cyc. p. 1135. ed until that can be done. The sheriff of Pulaski county, to whom the execution was delivered, is also made a party to that suit. [5] Now, it would be improper to undertake to decide, in advance, the question involved in that case; but it is not improper to say at this time that, if a cause of action on behalf of the petitioners to prevent enforcement of this judgment against them be established, the chancery court, acting in personam, has the power to prevent the enforcement of the judgment, even though it be a judgment of this court. The court cannot coerce the officers of this court, but when it acquires jurisdiction of the persons of those who are parties to the judgment it has the power to prevent them from taking any steps towards the enforcement of the judgment. This, of course, is dependent upon there being a statement of grounds for equitable relief. The motion of petitioners is, therefore, overruled, without prejudice to their rights to seek relief in a court of competent jurisdiction. WESTERN TIE & TIMBER CO. v. CAMP- (Supreme Court of Arkansas. July 6, 1914.) A mortgage given at the time of the purchase of real estate to secure the purchase money, whether given to the vendor or to a third in-person, who, as a part of the same transaction, advances the purchase money, has preference over all judgments and liens against the mortgagor. [4] That is as far, however, as this court can go, because it would be an exercise of original jurisdiction for this court to attempt to adjust the equities between the sureties on the bond of the defendant insurance company. If there exists any equities between the parties to be adjusted, a remedy must be sought in a court of original jurisdiction. The admission that Calhoun satisfied the execution issued from the Pulaski circuit court and caused the judgment to be assigned to him, and later to the German Investment Company, raises a question of fact which relates only to the alleged equities between petitioners and Calhoun and those who claim under him; for the judgment of this court was not rendered against Calhoun. The effect of the admission is merely that Calhoun purchased an assignment of the judgment, and the question whether he had a right to do so is one for investigation in a court of original jurisdiction. It is alleged in the petition that the petitioners have instituted an action in the chancery court of Pulaski county against all of the parties claiming an interest in the judgment, and they are [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 337-343; Dec. Dig. § 158.*] 2. FINES (§ 3*)-LIEN-STATUTES. Kirby's Dig. § 2467, providing that the real and personal property of one charged with a of his arrest or the finding of an indictment criminal offense shall be bound from the time against him, whichever shall first happen, for the payment of all fines and costs which may be adjudged to pay, creates a lien upon such property, not only in the hands of accused, but in the hands of any other person possessing or holding it, after the arrest or indictment found, until accused is discharged or fines and costs adjudged against him are paid, which lien also attaches to the accused's after-acquired property. [Ed. Note.-For other cases, see Fines, Cent. Dig. § 5; Dec. Dig. § 3.*] 3. MORTGAGES (§§ 90, 173*)-RECORD-EFFECT OF UNRECORDED MORTGAGE. Under Kirby's Dig. § 5396, providing that shall be a lien thereon from the time it is filed every mortgage of real or personal property in the recorder's office for record, an unrecorded mortgage is valid between the parties and as against persons holding the property under a voluntary conveyance. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 199, 200, 412, 419-424; Dec. Dig. §§ 90, 173.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 4. MORTGAGES (§ 151*)-PRIORITY-LIEN OF JUDGMENT FOR FINE. Under Kirby's Dig. § 2467, binding the property of an accused from the time of his arrest or the finding of an indictment against him to the payment of fines and costs adjudged against him, and section 5396 providing that every mortgage shall be a lien on the mortgaged property from the time it is filed in the recorder's office for record, the state after indictment had a valid lien for fines and costs prior to a mortgage of property of accused, executed after the indictment, but not recorded until several months after execution. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. § 151.*] purchasers. Subsequently appellant purchased the notes secured by the mortgage executed by Thomas, and foreclosed the mortgage, and became the purchaser at the sale. [1, 2] It is quite well settled by the authorities that a mortgage, given at the time of the purchase of real estate to secure the payment of purchase money, whether given to the vendor or to a third person, who, as a part of the same transaction, advances the purchase money, has preference over all judgments and other liens against the mortgagor. "A purchase-money mortgage may," says Mr. Jones, "be made to a third person who Appeal from Jackson Chancery Court; advances the purchase money at the time George T. Humphries, Chancellor. the purchaser receives his conveyance, and such mortgage is entitled to the same preference over a prior judgment as it would have had if it had been executed to the vendor himself." 1 Jones on Mortgages (6th Ed.) § 472. Prof. Pomeroy has this to say on the sub ject: "Even in the absence of any statute, and upon the general principles of equity, a purchasemoney mortgage given at the same time as the deed, or as a part of the same transaction, has precedence over any prior general lien, such as that part of a prior judgment against the mortgagor. The same equitable rule applies in like manner to a mortgage given by the grantee to a third person, as security for money loaned for the purpose of being used, and which is actually used, in paying the purchase price." 2 Pomeroy's Equity Jurisprudence (3d Ed.) § 725. The following cases, among many others, fully sustain the text: Kaiser v. Lembeck, 55 Iowa, 244, 7 N. W. 519; Clark v. Butler, 32 N. J. Eq. 664; Moring v. Dickerson, 85 N. C. 466; Rodgers v. Tucker, 94 Mo. 346, 7 S. W. 414; Roane v. Baker, 120 Ill. 308, 11 N. E. 246; Courson v. Walker, 94 Ga. 175, 21 S. E. 287. On February 11, 1904, the grand jury of Jackson county returned an indictment against Thomas for misdemeanor, and he was arrested on a bench warrant in July of the same year. After the return of the indictment against Thomas, some time during the month of February, 1904. the precise date "The reason given," says the North Caronot being shown, he negotiated the purchase lina court in stating the principle in the of the tract of land in controversy from one above-cited case, "is that, the execution of Mustin, who was then the owner. The pur- the deed and of the mortgage being simulchase price was to be $350, and Thomas bor-taneous acts, the title to the land does not rowed $250 to complete the purchase, having for a single moment rest in the purchaser only $100 of his own to pay on the land, and he executed the mortgage upon which appellant rests its claim of title to secure the amount so borrowed, which was used in paying the purchase price. The mortgage was dated February 26, 1904, and the deed from Mustin to Thomas bears date February 29, 1904, but the proof shows that the two transactions were simultaneous. The mortgage was not recorded, however, until November 4, 1904. On January 30, 1905, Thomas entered a plea of guilty, a fine of $50 was assessed against him, and judgment was rendered in favor of the state for the recovery of said fine and the costs of prosecution. In October, 1905, execution was issued on the judgment, the land was sold, and appellees became the but merely passes through his hands, and without stopping vests in the mortgagee, and during such instantaneous passage no lien of any character can attach to the title." The facts presented in this record bring the case within that rule as to the mortgage under which appellant claims title, but the real turning point in the case is whether or not appellant's lien under the mortgage was superior to the state's lien for the fine and costs assessed against Thomas. The statute provides that: "The property, both real and personal, of any person charged with a criminal offense, shall be bound from the time of his arrest, or the finding of an indictment against him, whichever shall first happen, for the payment of all fines and costs which he may be adjudged to pay." Kirby's Digest, § 2467. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |