27 Ark.] OF THE STATE OF ARKANSAS. 235 TEum, , 1871.] Kiernan v. Blackwell, Adm'r, et al. . KIERNAN v BLACKWELL, * Adm'r, et al. Eourr y PRACTICE—When demurrer considered waived.—Where a cause ' has proceeded to final adjudication, without judgment of the court upon demurrer filed in same, .the demurrer will be considered to have been waived. ExEcuToas—W hat interest in intestates' lamds.—Tne executor has, no interest in the lands of an intestate or control over them, save as it may be necessary to subject them to the payment of general creditors. PURCHASERS- —When not relieved in equity.—When the purchase money or notes, given for the purchase of land, have not been fully paid off, the purchaser can have no relief, in a court of equity, in seeking a decree for title. • FORECLOSURE — Who necessary parties .--It is error to render a decree for the sale of lands, or foreclosure for the purchase money, without mak-' ing the heirs at law of the deceased vendee, parties defendant. CHANCERY —Should notice def ect in parties.—Where the heirs at law of a deceased vendee are not made parties defendants to a bill seeking a sale of land or foreclosure for pur'chase' money, the court below, on its own motion, should notice this defect of Parties; and this court, in chancery, will protect the estate and heirs at law, who are not made parties, whether the objection is or is not made. APPEAL FROM JEFFERSON CIRCUIT COURT. HMI. WILLIAM M. HARRISON, Circuit Judge. • Watkins & Rose, for Appellant. Bell & Carlton and Garland & Nash, for Appellees. WARWICK, Spec. Sup. Judge.—At the spring term 1867, of the Jefferson Circuit Court, Miley E. Blackwell, administia-trix of the estate of James J. Blackwell, deceased, filed her bill of complaint, in chancery, against Bedelia F. Kiernan, Peter A. Finnerty and Anthony A. C. Rogers, complain-0 ing and representing that, on the 23d of December, 1859, her intestate purchased of said Bedelia F. Kiernan, certain lands, lying in the county of Jefferson, for which, by written contract, he was to pay her 113,000 pounds of cotton; that he executed to said Bedelia F. his four several ,bonds, in which he bound himself to deliver to her, or her agent, in the town of Pine Bluff, on. the first day of January, 1861-2-3 and 4,' •
236 CASES IN THE SUPREME COURT [27 Ark. . Kiernan v. Blackwell: Adm'r. et al. [DECEMBER sixty-three averaged sized bales of cotton, of the aggregate weight of 28,350 pounds. That by wIlitten contract, , under seal, between said intestate and said Bedelia F., a lien was retained on the lands for the purchase money, "as will more fully appear by reference to a certified copj of the deed, signed by Bedelia F., and the said James J. Blackwell, herewith ° filed and marked Exhibit "A," which exhibit is not in the record. The bill further avers that the first three writings obligatory were fully paid off and discharged by her intestate, and herself as the , administratrix ; that the fourth is in the hands of A. A. C. Rogers. The bill then charges that the land did not belong, in point Of fact, o Mrs. Kiernan, but to Peter Finnerty and were held by her to - defraud the creditors of said Finnerty, and that said Finnerty pretended to, and did act, and was the agent of Mrs. Kiernan, and had power of attorney to receive the said cotton for her, We do not conceive said Finnerty . as having any interest in this suit, , , or a necessary party, and is not to be considered, except as the record shows him to have been the agent of Mrs. Kiernan. The bill avers that the said Peter A. was the person from whom, on final payment, a deed should have been received, but does not aver any legal title in him ;to convey. The complainant avers payment of the last or fourth bond to Finner-ty,' as agent of Mrs. Kiernan, by receipt of cotton,. at the gin house of complainant. The prayer of the bill is, that the bond in the hands of Rogers be cancelled, and that the said Kiernan, Finnerty and Rogers be divested of all title and interest in said lands, and the same be vested in the heirs of said Blaclwell deceased, and other proper relief. At the fall term Messrs. Bell & Carlton, attorneys,' entered the appearance of all of said defendants, Kiernan, Finnerty and Rog= ers,) and filed a demurrer to the bill. This cause having pro-. ceeded to a final adjudication, Without judgment of the court on demurrer, it must be considered to have been waived and cannot now be considered by this court.
27 Ark.] . ■OF THE STATE OF ARKANSAS. 237 s TERM, .1871.] Kiernan v. Blackwell, Adm'r, et al. At the same term, Rogers, by Bell & CaHton, his attorneys, filed his answer, admitting the purchase of the land ; denying all knowledge of the . payment of the three first bonds, and averring the fourth to be in his possession, and his property, and that he had brought suit to recover the same, in the Jefferson Circuit Court, denying that it ( the fourth) had ever been 'paid. Mrs. Kiernan filed her answer and wade it a cross-bill against Mrs. Blackwell and Rogers, claiming the third and, fourth bonds to be outstanding, unpaid and her property and, without making the heirs at law of James Blackwell, deceased,, parties, prays that the amount due • her 'be ascertained, .and the same declared a lien on the lands, for foreclosure, etc. Rogers answered the cross-bill of Mrs. Kiernan, and in turn made it a cross-bill against Mrs. Blackwell and Mrs. Kiernan, claiming to own the fourth bond by purchase, etc.,, and without making the said heirs parties, he prays that it be ascertained what amount is due him on the said fourth bond ; that it be declared a lien, and for foreclosure, etc. This is all of ■ the pleadings that we deem it necessarY to notice. ' On th.e foregoing pleadings, testimony was introd uced, which in the view of the case we have taken, need not be noticed. On the final hearing, the court found in favor of Rogers, on the fourth bOnd, due the 1st of January, 1864, and that there was due on the same $1000 ; declared the same to be a lien on the lands and ordered foreclosure and sale of the lands to pay the amount so found due. We observe first : that on the final hearing at least a portion of the original purchase money was unpaid ; hence Mil-ley E. Blackwell could not have the relief she prayed for. Second ; that neither Mrs. Kiernan or Rogers who, both claiming relief against the land for purchase money, do not make "the heirs at law of ,Tames J. Blackwell, deceased, parties defendant, hut proceed alone against the administratrix, and the court, without having them brought in, renders a final decree against Mrs. Blackwell, as administratrix, and
238 CASES IN THE SUPREME COURT 127 Ark. - Kiernan v. Blackwell; Adin'r. et al. [DECEmmn declares • the sum found, due Rogers, a lien on the land and orders its sale. That in a proceeding to foreclose a mortgage or vendor's lien on lands, the heirs at law are necessary parties, without whom no final. decree can be entered, seems . to us not to require discussion. • The executor. Of an estate has no interest in the lands of an intestate, and no control over them, save as it may be •necesSary to subject • thein to the payment of general creditors. It was the • duty of the chancellor, in the -court below, to have noticed the defect of phrties on his own motion; it is - equally our duty in chancery to protect the estate and heirs at law, who are nOt made parties, Whether the objection is or is not made. The court erred in rendering a decree for the sale of the lands, without requiring the heirs at law of James J. Black-well, deceased, to be made parties defendant. We cannot - pass this case Without noticing at least one point in the- record, complained of by appellant. On the trial of the cause, the Written statement of one Brewer, not under 'oath, was read in evidence, under an agreement signed by the attorheys for Mrs. Blackwell and Rogers, and against the objections of so- • licitors for Mrs. Kiernan. This statement was wh011 y . against the interest of Mrs. Kiernan, and we know of no rule 'by which this statement could be considered as evidence against the objection of Mrs. Kiernan. The notes not having been .fully paid, Mrs. Blackwell, • the original complainant, could have no relief ; the heirs at law of James J. Blackwell, deceased, not having been made parties, neither Mrs. Kiernan or' Rogers could have had foreclosure. The court should have disiniSsed the original bill of Mrs. Blackwell, and also the cross bill Of Mrs. Kiernan and Rogers. For tbese reasons, the decree of the 'court below is reversed, and the said original bill of Mrs. Blackwell, the cross-bill of Mrs. Kiernan, the cross-bill of A. A. C. Rogers, are severally dismissed without prejudice to the rights of either. Ordered by the court, that each bf..the several parties pay their own costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.