Snell v. Cummins , 67 Ark. 261 ( 1899 )

Wood, J.

The Bruce-Beine Hat Company, on August 8, 1891, had an attachment issued from the circuit court of Arkansas county against one Quertermous, and it is alleged that the same was levied on certain real estate August 14, 1891. On September 19, 1891, a judgment in personam was rendered against Quertermous, and execution stayed until January 1, 1892, when an execution was issued, and the lands sold by the sheriff February 20,1892, when the Bruce-Beine Hat Company, receipted the sheriff in full for the full amount of the claim. On September 19, 1892—nearly seven months ^thereafter—the attachment was sustained, but it does not appear that there was any order of sale under said attachment, or that there was any sale made. And, this being the case, of course it does not appear that any deed was made and approved and confirmed by the court. Appellant claims under the judgment.

On August I, 1891, Quertermous executed a mortgage on the same lands mentioned supra to one Alva Lewis. Themortgage was filed for record August 11th, 1891. This mortgage was afterwards foreclosed. Appellees claim under the mortgage, and this controversy between appellant and appellees is to determine who has the title. It appears, therefore, that the lien of the attachment was not followed up, and title perfected under it, by a sale of the land under the attachment by order of the court, and by having the sale reported to and confirmed by the court. Freeman v. Watkins, 52 Ark. 446. The pleadings and proof justify the conclusion that the lien of the attachment was abandoned, and that the Bruce-Beine Hat Company, the original judgment creditor, chose to rely upon the lien of the judgment and the saló and deed made under the same. It is clear that the mortgage was prior to the judgment lien, and that those claiming under it, as against one claiming under the judgment, have the superior title.

The decree of the circuit court is therefore correct. We need not go into other questions.