Cohn v. Hoffman , 50 Ark. 108 ( 1887 )

Smith, J.

Upon the remanding of this cause to the court below, Hoffman discontinued his action for the recovery of two of the tracts which had been in controversy, and amended his complaint by enlarging his claim for the mesne profits of the remaining tract to six hundred. dollars. The defendant disclaimed- title to the north half of the tract last mentioned, but pleaded that Bray, the common source of title to both parties, had purchased the south half from a railway company upon a credit, and about the first of November, 1880, had requested the defendant to pay the residue of purchase money then due, and had agreed to secure the repayment of such advance by a mortgage upon the land; that under said agreement the defendant had advanced three hundred dollars, and the railway company had conveyed the land to Bray, and on December 1, 1880, Bray and wife had executed the stipulated security; and that Bray, becoming afterwards further indebted to the defendant for goods, wares and merchandise, had sold and conveyed his equity of redemption to the defendant, who had entered and believing himself to be the rightful owner, had made valuable improvements. The mortgage and release of the equity of redemption were exhibited, and a motion was made to transfer the cause to the equity docket.

Upon demurrer, the answer was held to be insufficient, except in so far as it set up a claim for improvements. An exception was saved, and .the questions of damages for the detention of the land and of the value of defendant’s improvements, were submitted to the court without the intervention of a jury. And by agreement of the parties the court found that the rents and profits received by the defendant exceeded the value of his improvements by the sum of three hundred dollars. Judgment was accordingly entered for the recovery of the land and' for damages.

Judgement Lien: Equitable bound by: Priority over subsequent mortgage. By reference to the report of this case, when it was here before [45 Ark., 876], it will be seen that the plain-acquired his title by purchase at an execution sale, and that the judgment against Bray, upon which the execution issued, was rendered September 11th, 1878. The sheriff’s deed relates back to the rendition of the judgment, and carries whatever interest Bray then had, or subsequently acquired. Mansf. Dig., sec. 3001. As the judgment antedated the mortgage, Cohn must be subro-gated to the charge he has paid off, before he can claim priority over Hoffman. Now according to the averments, of the answer, which the demurrer confesses, there was no privity between Cohn and the railway company. He was not a surety for Bray, nor under any obligation to pay the debt. And there was no arrangement, either-with the company, or with Bray, that Cohn was to succeed to the lien of the vendor. No assignment of the debt was taken by him, and payment would not, of itself, work any assignment. No circumstance connected with, the transaction manifested an intention to keep the lien alive for his protection. But the agreement was that he-shonld rely upon a new security to be given him, namely, a mortgage upon the same land. It was simply a loan of money to Bray, who stood in the situation ot a mortgagor, by a person who was in no wise connected with, the mortgage, upon an agreed security. The conveyance to Bray and the execution of the mortgage were not simultaneous transactions. The title remained in Bray fora month ; and this was long enough to let in intervening-incumbrances. Upou payment oi the purchase money to the railway eempany and even before such payment, Hoffman’s lien attached to the land; for the equitable-estate óf a judgment defendant is bound by the lien of the judgment. The new security must be postponed to-the prior incumbrance. Sheldon oh Subrogation, secs. 8, 19; Small v. Stagg, 95, Ill., 39 ; Stearns v. Godfrey, 16 Me., 158; Woolen v. Hiller, 9 Gill, 185 ; Commonwealth v. Chesapeake, &c., Canal Co., 32 Md., 501 ; Kitchell v. Mudgett, 37 Mich., 81; Nichol v. Dunn, 25 Ark., 129.

•The cases of Chaffer.'Oliver, 39 Ark., 531, and Rodman v:Sanders, 44 Id., 504, are distinguishable. They were not cases where different parties had successive claims, upon the same property by mortgage, lien or purchase,, and the facts were widely different.

Judgment affirmed.