Randolph v. Nichol , 74 Ark. 93 ( 1905 )

McCulloch, J.,

(after stating the facts.) It was the purpose of the active litigants in this suit, of which the so-called cross complaint of appellees and the proceedings had thereunder formed a part, to wind up the affairs of the joint association, and dispose of its assets, and distribute the same among the holders of the stock. The court so treated the suit, and every step taken throughout its lengthy course tended in that direction. Every person interested as owner of stock or creditor of the concern was a proper party, and should have been admitted to assert any rights. Appellees were therefore proper parties to the suit for the purpose of asserting their claim as owners of stock and to share in the distribution of assets.

It was perhaps a misnomer to denominate their plea a cross complaint, as it does not fall strictly within that term as fixed by the statute. But under our code of practice all forms of action are abolished, and relief is granted according to the facts alleged and proved, without regard to the form or denomination of the plea. Therefore; the- contention of appellants that the relief must be denied because the facts set forth do not properly constitute appellees cross complainants in the suit is untenable.

Equally groundless is their contention that the decree at the September term, 1900, was a final adjudication of the rights of all parties, and that further relief should be denied. This is true as to all matters adjudicated by the court, but the court expressly pretermitted any decision concerning the rights of parties in the distribution of the assets of the association between the shareholders, and reserved that matter to be disposed of later. In furtherance of that course, the court allowed the purchasing shareholders to enjoy, tentatively, the fruits of the litigation to the extent of crediting their stock upon the purchase price of lands, but upon the express condition that they could be called upon at any time to pay such portion as should be found necessary to adjust the equities between all the shareholders, and a lien was declared for that purpose on the lands. In every step of the proceeding the court thus retained its hold upon the assets of the association, and protected in that way the rights of the nonpurchasing stockholders. It requires no citation of authority to sustain a court of equity in that course.

When the plea of appellees was filed, they were already parties to the suit, and had appeared as such, and were so treated for several years, though no formal order had been entered making them such; and the cause was still pending for the purpose of distributing the assets among the stockholders.

The conclusion reached that the cause was still pending for the purpose of adjusting the equities between the stockholders disposes of the plea of limitations and laches interposed by appellants. So long as the cause'was pending, the statute did not begin to run against the lien reserved in the deed; and, the purchasing stockholders being parties to the suit, it was equally incumbent upon them to press the suit to final determination of all rights, and they can not be Heard to complain of other stockholders foi delay in that respect. Ex parte Spence, 6 Lea, 391; Halstead v. Grinnan, 152 U. S. 416.

The same rule must prevail as to subvendees, as they took the land subject to the lien thereon and the right of the non-purchasing stockholders to call for contribution. No definite time was fixed when the contribution might be enforced, and there ■ was, therefore, no period from which the statute of limitation would run.

The chancellor found that the purchases at tax sale by Read and at levee tax sale by Randolph were, in fact, for the parties who had purchased in this suit, and whose duty it was to pay the taxes, and were therefore void. We think the proof sustained that finding, and the same will not be disturbed.

The chancellor also 'set aside the purchase by Organ at tax sale, for the reason that he was a party to the suit. This was erroneous. Organ was under no obligation to pay the, taxes, and no relation- of trust existed between him and the appellees or other stockholders. He was a stranger, so far as concerned the lands bought at tax sale, and enjoyed the same privilege as any other stranger to buy at the tax sale. The fact that he was a party to the suit did not curtail that privilege, and imposed no duty upon him concerning the lands or the other parties to the suit.

The appellees, Nichol and others, by their cross appeal question the ruling of the chancellor in ascertaining from proof the actual value of the lands at the time of the sale and requiring the purchaser to contribute only according to that value, instead of according to the par value of the stock paid in such sales. It was shown that the stock was greatly depreciated in value at the time of the purchases, being worth 33.08 per cent., as found by, the chancellor, and it would have been unfair and inequitable to fix the liability of the purchasers to contribution on a basis of the par value of the stock. The basis of settlément adopted" was, under the circumstances, the only fair one, and just to all parties.

The decree is modified so as to exclude from the enforcement of the lien the lands bought by C. H. Organ at tax sale, and described in the pleadings as part of the northeast quarter section 12, township 6 north, range 9 east, 55.40 acres, and north half of northwest quarter section 13, township 6 north, range 9 east, 80 acres; and in all other respects the decree is affirmed.

Wood, J., not participating.