874 SMITH V. AMIS [193 SMITH V. AMIS. 4-4571
Opinion delivered March 29, 1937. 1. JUDGMENTS—FINAL JUDGMENT DEFINED.—A final decree is that which disposes of the whole question so that nothing is left to adjudicate upon. 2. JUDGMENTS—IMPLIED ADJUDICATION.—Where, in mortgage foreclosure proceedings, S. intervened, claiming title to the property under a bill of sale, and F. intervened, claiming rights in and to the property by reason of an assignment of rents which had been collected and paid on the purchase price of the property, and the assignment of the rents was an issue raised by the first intervention, a finding against S. on her claim of ownership, and silence as to F.'s claim under his assignment was not an implied adjudication against F.'s claim, where his intervention was not dismissed, and it appeared that neither the parties nor the court considered the issues concluded. 3. ABANDONMENT—EvIDENCE.—Statement by assignee , of rents on visiting apartments where he looked over the property involved, • "I don't see anything here for anybody; I don't see anything to be
ARN.] SMITH V. AMIS. 875 got out of this thing" was insufficient to show an abandonment of .the assignment. 4. VENDOR AND PURCHASER—INNOCENT PURCHASER.—Parties buying furniture under a bill of sale are charged with knowledge of record showing adverse interests, and are not innocent purchasers. Appeal from Pulaski Chancery Court ; Frank H. Dodge, Chancellor ; affirmed: Tom W. Campbell, tor appellants. 0. W. Wiggins, S. S.'Jeff cries and Fred A. Donha,m, for aripellees: .• 6RIFFIN SNIT:11 9, C. J. On Aprii 17, 1936, the Pu-laski chancery court gave judgment for $1,556.93 in favor 'of W. Finkbeiner,, trustee. Certain furniture was impreSsed with a lien to secure payment of the obligation: . S' , J. M. Wells and :others . were defendants in suits, wherein mortgages: on the real property of the Violet Apartments were foreclosed in 1934. The furniture involved in controversy was a part of the equipment of the . apartments. Marjorie Smith and Violet , Hayes, daughters of : Wells, have appealed on the grounds (1) tbat Finkbeiner "s , cause of action was res adjudicata; (2) that , there is, no competent evidence to support the chancellor 's findings ;. (3) that Finkbeiner had abandoned a,n assignment of rents upon which his lien was predi, cated, , and (4) 'that , appellants were innocent purchasers without notice: • On December 30, 1933, Mary E. B.:Amis and others filed suit against J..M. Wells arid necessary parties . on an indebtedness secured by mortgage or deed in trust on real property known a -the Violet Apartments. Other obligations in favor :of materialthen had' been incurred by Wells. These' were',evidenced : by note payable to Pink-beiner as trustee, secured by second mortgage. In the Amis suit to foreclose the first mortgage, Finkbeiner *was a . defendant. , He filed answer, and in an intervention aSked that a lien . be . declared :on the furniture for the reason that rents assigned to hirn under a' Written: pledge had been used .by Wells to make payments on the purchase price. He also sought judgment on the note, and foreclosure of -the second mortgage..
876 SMITH V. Aims. [193 Marjorie Smith, one of the appellants herein, filed an intervention in the . foreclosure suits, alleging ownership of the furniture under a bill of sale from her father, executed in 1932. On October 11, 1934, judgments were given in favor of those entitled to participation under the first and second mortgages on the real property. Equities amounting to $550 and interest were 'established in favor of Marjorie Smith, 'who was found to be mortgagee, and not owner, of the furniture. A lien was declared for this, and for the additional sum of $630 payable to the Hav-erty' Furniture Company on a sales contract. 1Thon a showing that the defendant Wells wa g insolvent, Kenneth Lane had been appointed receiver, and from February 3, 1934, rents on the apartments were collected by him. The decree of October 11, 1934, directed Lane to pay the claims 6f Marjorie Smith and Haverty Furniture Company. As t . o the item of $550 it is conceded that this was paid by the receiver, and the Haverty claim was discharged. The 'same decree gave judgment of $5,403.11 to H. W. Finkbeiner, trustee, on his answer and intervention, and fixed a lien on the real property by virtue of the deed of trust referred to supra. There is this recital : " The court doth retain control of this cause of action for such further orders as -may be proper to enforce the rights'of the parties hereto adjudged and the rights of such as may hereafter become parties to this action by proper proceedings * * *. And to the findings and decision - of the court holding that the said bill of sale of the intervener, Mrs. Marjorie Smith, has only the effect of a mortgage and in refusing to hold that said bill of sale has the effect of vesting absolute title to the property -therein described in her, said intervener, Mrs: Marjorie Smith, and the . defendants, J. M. Wells and Ger-trude Wells, and intervener, H. W. Finkbeiner, duly save their exceptions." None of the parties who excepted to this decree appealed,' and on November 13, 1935, Marjorie Smith and Violet Hayes brought an action in replevin in the Pulaski chancery court, naming as defendants those who were parties to the chancery proceedings. Over objections of the plaintiffs, this suit -in replevin was transferred to
ARK.] SMITH V. AMIS: 877 chancery, and there consolidated with the foreclosure cases. It alleged that Marjorie Smith and Violet Hayes were owners of the furniture, and were entitled to its possession. After the cause had been transferred to chancery,. Finkbeiner. filed an intervention, motion to consolidate, and answer, setting out his claim• against the furniture. • In the decree of April 17, 1936, the chancery court found that as to the Finkbeiner claim, J..M. Wells and his wife, Gertrude Wells, had on August 15, 1930, executed and delivered to- Finkbeiner as trustee the note sued on, together with a written assignment of rents arising from the Violet Apartments . ; that they had collected $2,075 of the assigned rents and used such in payment on furniture; that the reasonable rental- value of the furniture was equal to 25 per cent. of the total received, or $518.31 ; that Finkbeiner was entitled to the differenee of $1,556.93, but that plaintiffs, Marjorie Smith and Violet Hayes, were entitled to a lien to the • extent of $1,000 by virtue of a bill of sale executed • J. in their favor by M. Wells, dated June 18, 1935, subordinate to the Finkbeiner lien of $1,556.93. This appeal is from the action of the court in refusing to . recognize the bill of sale as a valid transfer of an unencumbered title to the furniture. (1) If Finkbeiner's cause' of action was res adjudi-eata, there was no title adverse to appellants, and they should prevail. In urging validity of the bill of sale; appellants direct attention to the mortgage and the as-signinent in favor of Finkbeiner i which bear the same date, and which were before the court with-Finkbeiner's answer and intervention on October 11, 1934, at the tithe judgment was given on his note and mortgage: At the same time,. judgment was 'given in favdr of Marjorie Smith for $550, with a lien 'on the furniture. It is contended that the court's failure ut that time to find for Finkbeiner on the assignment of rents was a denial of his claim, and constituted- a final judgment from which he could have appealed ;- 'and, having failed to aprieal, such right had ceased at the time appellants sOught to replevy the furniture:
878 SMITH V. Amts. [193 The correct rule is that "if the judgment or decree in form. or effect dismisses the parties from the court, discharges them from the action, or concludes their rights in respect to the subject-matter in controversy in the case, an appeal -will lie." Campbell v. Sneed, 5 Ark.. 398. "A- judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject:matter in controversy." State Bank v. Bates, 10 Ark. 633.. "A final decree.is that which concludes their rights to the subject-matter in. controversy." Bank of State v. Bates, 10 Ark. -633. "A final decree is that which finally . disposes of the whole question so that nothing further is left to adjudicate upon." Tucker v. Yell, 25: Ark. .420, quoting from . Bouyier. In Tucker y. Yell it was , said :. "In peculiar ,cases, the court may. decree as .to certain defendants or- property, while all the equities as to- other defendants and property are reserved for further consideration; and yet thi§ decree, as to certain .defendants . or property, may be final. 1:If; in the course of the proceedings, final decrees vital to the interests of any-of the litigants-are made, an. appeal may be had." -• • Judgment on the note and-the decree of -foreclosure w ere . final aS to , Finkbeiner 's rights under the 'Mortgage. The assignment of rents, evidenced by a separate docn-ment, .was an issue raised• by the first intervention. The intervention was not dismissed; and there was- a.finding against Marjorie Smith on- the question of • ownerShip.of - the furniture, she ,being adjudged a mortgagee -.only. Therefore, there was no. adjudication against Finkbein-er 's claims under the assignment unless .it cari‘ be .said that silence by the court , is to be construed as a- denial of •the, claim. , Subdivision "c" of § 95, 4 C.• J..S., -is a discussion of the law of implied adjudication. !.A. judgment or , decree," says:the text, "may be final- and ap-pealable as disposing of all the .issues by reason .of- .an implied adjudication, and it has been held that .where two causes of action are -stated in the pleadings. and. put in issue at .the trial, and the . . judgment- awards A recoverY upon one, but is silent as to the other, such judgment is prima facie an adjudication that plaintiff Nas nOt entitled
ARK ] SMITH V. AMIS: 879 to recover upon the other cause. This rule applies to disposition. of the iSsue raised by-a cross-bill, cross-com-• plaint, counterclaim, 01-plea in reconvention." While this rifle is sound, its application would depend upon circumstances and* facts 'attending a particular ease, .and if it should 'reasonably appear' :that the parties, themselves, and the court, did not consider 'the 'issues concluded, the rule 'should 'not be invoked. - In tfle instant case Finkbeiner's poSitidn Was 'antagonistie to that of Marjorie Smith, and her interests' were disposed of 'without' a specific finding' against Finkbeiner under his assignment. It is inferable that Wells Was co-operating with his daughter in substantiatiOn of her 'claim of oWnership under the first bill of sale, although the. testimony is not abstracted. There is nothing to suggest that the court, after finding that Marjorie Smith was not an owner, intended to hold against Finkbeiner. Nor can it be said that failure to make a , finding had the effect of an adverse ruling. The very - purpose of the intervention was to present Finkbeiner's claims under the assignment, and the intervention . was . not dismissed. It follows that appellants" plea of . res . egljyclicaa was,properly rejected.. . . - . • (2) Under -the second asSignment, it is contended that there is no competent evidence to support the decree. We have examined ihe abstract'and testimonY in the record, and on this point the chancellor is Sustained. (3) . No 'substantial proof was- introduced to show that Finkbeiner abandoned . the assignment, other than testinionY of Wells, who said that on one odeasiOn Fink-beiner visited theapartments, and after . looking over the property remarked, "I don't see anything here for anybody ; I don't see 'anything to be got out of this thing." The statement cannot be construed as an ,abandonment, nor did his prior or subsequent conduct evidence such an intent. (4) Appellants were not innOcentpurchasers of the 'furniture under the bill of sale 'ekecuted in 1935. A.t that time Marjorie Smith had- secured a . lien under a previous bill of sale, and' the judgrnent- bad been paid. She is charged with knowledge -of the record. 'The court
880 [193 retained control of the actions, and the receiver had not been discharged. The appellant, Violet Hayes, became interested because of the pressing necessities of her mother, who was ill, and because of the unfortunate financial condition of her father. It is admitted that each appellant advanced funds, but a proper construction to place upon the evidence is that the appellants desired to be of service to their parents. Therefore, their motives were far more praiseworthy than would have been the case had they responded to a mere business opportunity to acquire property. The chancellor was not in error when he found against the contention that they were innocent purchasers without notice. Affirmed.
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