Jones v. Graham , 94 Ark. 443 ( 1910 )

Wood, J.,

(after stating the facts). Jones appeals from the decree of the court refusing to confirm the report of sale of the commissioner and striking the report from the files. He does not appeal from that part of the decree approving the report of the commissioner showing that the money paid by the firm of McCarver & Jones for the purchase of the land had been returned to McCarver, a member of that firm, while the partnership still existed. The receipt of the money by McCarver bound Jones. He did not appeal from the decree of the court exonerating the commissioner for paying over the money to McCarver (of the firm of McCarver & Jones) and discharging the commissioner from all liability on that account. The money which his firm paid for the land having been returned, Jones is not in an attitude to ask that the sale of the land also to his firm be confirmed. He can not have both the money and the land. He cannot “eat his cake and have it,” too. Another view of the case is that Jones moved to have the commissioner bring the money into court for the purpose of having that money turned over to him, instead of McCarver. The testimony before the chancellor on Jones’s motion to have the money brought into court shows that he was claiming the money as his own, and that the commissioner should have paid same to him, instead of to McCarver. By his motion then, conceding that he has appealed from the ruling of the court on that issue, he is here insisting that the one thousand dollars be paid over to him for his individual benefit, and at the same time he is also insisting that the sale of the commissioner be confirmed. His positions are inconsistent. French v. Vanatta, 83 Ark. 306; McDonald v Hooker, 57 Ark. 638; Cox v. Harris, 64 Ark. 213; Cook v. Martin, 75 Ark. 51.

The decree is affirmed.