Fry v. Street

37 Ark. 39

• Court: Supreme Court of Arkansas
• Decided: May 15, 1881
• Status: Published

Opinion

Harrison, J.

Whatever interest in the notes remained in Martin & Hillsman after they delivered them back to-Street, if any, upon their bankruptcy passed to and vested in their-assignee, Edmonds. Rev. Stat. U. S., secs. 5044, 5047; Geisreiter et al v. Sevier, 33 Ark., 522; Pearce v. Foreman, 29 Ark., 563.

They were, therefore, neither necessary nor proper parties.

A misjoinder of defendants is not a ground of demurrer,, and if Edmonds was not a proper party, his name might, have been stricken out of the complaint upon motion. Oliphint v. Mansfield & Co. et al, 36 Ark., 191.

As to the equity of the complaint, there can be no question ; and the ground of the demurrer, that the complaint did not state facts sufficient to constitute a cause of action, has not been insisted upon here.

A lien for the payment of the notes was reserved in the deed from the plaintiff to Woodward, and the appellant, in part consideration of his purchase of the lots from Woodward, agreed and undertook to pay them, and it was so expressly stipulated in Woodward’s deed to him.

That part of the debt, when collected, was by the decree directed to be paid over to Edmonds, np way concerned the appellant.

But though the plaintiff’s right to a foreclosure of the lien is clear, it was an error in the Court below, in its decree,, to direct a sale of the property for cash, as it virtually did, by not directing the sale to be on credit, and fixing the •credit to be given.

The Statute says that sales of real property by order of Court, shall be on a credit of not less than three nor more than six months, or in installments equivalent to not more than four months’ credit on the whole. Sec, 4708 Gantt’s Digest; Worsham and wife v. Freeman, 34 Ark., 35; Williams et al v. Ewing & Fanning, 31 Ark., 292; Welch v. Hicks, 27 Ark., 292.

Eor this error the decree must be reversed and the cause remanded to the Court below, with directions to render a decree for a foreclosure of the lien, and for a sale of the property on a credit, as required by the Statute.