Imboden v. Talley , 150 Ark. 567 ( 1921 )

McCulloch, C. J.

Appellee owned a small tract of land at or near the village of Menifee in Conway County, and on July 17, 1919, he entered into a written contract with one McCray for the sale of the land at the price of $325, of which $60 was paid in cash, and the balance was to be payable in installments. Appellant was engaged in the business of selling lumber and other building material, and he sold to McCray material at the price of $609 to use in building a house on the land which he had contracted to purchase from appellee. This material was hauled from appellant’s place of business in Morrilton, and was used in constructing a house on the land purchased by McCray from appellee. Appellee did the hauling for McCray for a price agreed upon between those parties. Nothing was paid on appellant’s account for the building material, nor did McCray make any further payments on his contract witli appellee for the purchase of the land. Appellant did not file his lien as -prescribed by statute, but on December 20, 1919, McCray and his wife executed a mortgage on the land to appellant to secure the debt. Subsequently appellee instituted an action in the chancery court of Conway County against McCray and his wife to declare a forfeiture under the contract and to divest all interest of McCray out of the property and quiet the title of appellee. Appellant was not a party to that suit. The chancery court rendered a final decree on September 20, 1920, in accordance with the prayer of the complaint, quieting appellee’s title, neither of the defendants having made appearance in the action. Subsequently appellant instituted. this action in the chancery court of Conway County against McCray and wife to foreclose his mortgage. In some way not disclosed by the record now before us, appellee got to be a party to that -suit. He was so treated, and filed an answer, no question being raised here as to appellee having been properly brought into the case.

The relief sought by appellant against appellee is that the latter’s lien on, or title to, the land be subordinated to his (appellant’s) mortgage debt on the alleged ground that appellee, by reason of having stood by and permitted appellant to furnish the material for building a house, is estopped to assert any claim or title.

The case was heard on depositions of the witnesses and documentary evidence introduced, and the court found that McCray and wife were indebted to appellant in the sum of $609 with interest from December 20, 1919, and decreed recovery of that amount as against said McCray and wife, but decreed that appellee’s right and title to the property was superior to appellant’s claim, and that appellant was only. entitled to a foreclosure by paying to appellee the amount of the original indebtedness of McCray and wife to him, which was found by the court to amount to the sum of $260 with interest from July 17, 1919, and appellant was decreed the right to redeem by payment to appellee of the necessary sum on or before January 1, 1922. The decree provided that, if said sum 'be paid to.appellee on or before the day mentioned, appellee’s title be divested, and that appellant’s mortgage be’ fox-eclosed by sale to be made by the court’s commissioner.

The contexition of appellant is that appellee is estopped by reason of the fact that in hauling the material for McCray he lent his assistaxxce to the procurement of the building material and led appellant to believe that McCray had a clear title to the property on which the house was to be built. Appellant also testified that appellee told him that McCray was the absolute owner of the laxxd. This, however, was dexiied by appellee, who testified that he made no such statemexxt to appellant, nor axxy other statemexxt which was calculated to induce appellaxit to believe that McCray had absolute title to the property, or that he (appellee) did not 'have any lien on it. Appellee testified that, 'after making the sale to McCray, the latter employed him at so much per load to haul the buildixig matexial, and that McCray claimed that he had the money with which to pay for the material. McCray’s wife also testified as a witness in the case, and she stated that she had $450 in money and gave it to her husband to use in paying for the building material and thought that the material was paid for.

There is a conflict of testimoxiy, but our conclusion is that the findixig of the chaxxcellor to the effect that appellee was xiot guilty of any conduct which would work an estoppel oxi his part is not against the preponderance of the testimoxiy. That being true, appellee’s rights are superior to appellant’s mortgage lien. Appellaxit was not, however, a party to the suit against McCray and wife in which their rights in the property were divested, and he is not bound by that decree. Appellant was a junior lienor and a necessary party to any proceedings to divest the title. Having been omitted from that decree, the. only remaining question which arises in the present litigation is, what are his rights now? There was no appeal by McCray or wife from the former decree, and that has become finah'as against them. The effect of the decree was to divest the title out of McCray, and, since it is found that appellee’s lien was superior to that of appellant, the latter’s only remedy is to redeem from that lien by payment of appellee’s original debt with interest. Dickinson v. Duckworth, 74 Ark. 138; Longino v. Ball & Warren Commission Co., 81 Ark. 521.

It is unimportant to inquire whether the decree was correct in appellee’s suit against McCray and wife in divesting the title, instead of directing a foreclosure of the lien. The decree being unappealed from, it is a final adjudication of the rights of the parties to it, and, as before stated, appellant’s only remedy is to redeem from the prior lien. The rule would not be altered by the fact that under the former decree the relief granted was improper. Under the authorities just cited, appellant was not entitled to have another foreclosure of the lien, for, in order to preserve his own equities, he is compelled to do equity by discharging the superior lien. The court has given him ample opportunity to do this, and the time allowed has not yet expired.

We find no error, therefore, in the proceedings, and the decree is affirmed.