MOONEY V. BRINKLEY. VOL. 17 340*] *MOONEY That, on the 21st of May, 1846, V. Mooney purchased of Rogers a tract ot BRINKLEY. land lying near Arkadelphia, containing four acres, for $120, giving his note A defendant in chancery having submitted to an-therefor, payable on the 15th Novem-swer the whole bill, and not having, by demurrer, nor by answer, objected to the jurisdiction of the ber, 1847, and taking Roger's bond for court over any of the matters set up in the bill,can-title. not, upon the hearing, nor upon the appeal, object About two years before the filing of to the jurisdiction, unless the court was wholly in-the bill, complainant being a merchant competent to grant the relief sought by the bill. A mortgagor hav,ng the right of possession of the in Arkadelphia, and Mooney being mortgaged premises, under the terms of the mort-poor and destitute of capital, but com-gage, until the time of payment limited thereby, plainant having confidence in his hon-cannot be dispossessed by an action at law before esty, industry, and believing he would the time limited for payment. But if the mortgagor of real estate acts so im-prosper, if assisted, at the request of properly as to cause damage or waste, whereby the Mooney, furnished him with means ta debt of the mortgagee may be jeopardized, the establish and carry on a tan-yard upon remedy of the mortgagee would be by a bill in eq-the tract of land bought by him of uity, to place the mortgaged property in the hands of a receiver, and not by an action at law of forcible Rogers. entry and detainer. On the 28th of January, 1847, com-And if he resorted, illegally, to such action at plainant and Mooney had a settlement law, and thereby subjected himself to an action of in respect of the money, merchandise, trespass ; and to relieve himself from liability for such trespass, had to ask the interposition of a stock, &c., furnished by complainant court of equity, he should bear all the costs growing for the purpose aforesaid, and it was out of such illegal action on his part. found that Mooney was indebted to. Where a mortgagee, for the purpose of taking him $1003.08, for which he executed to care of mortgaged property, incurs expenses after he comes legitimately into possession, he will be complainant his obligation, due one allowed them in the settlement ; but if he obtains day after date, with interest at six per such possession illegally, and thereby unnecessa-cent., with the privilege of discharging rily incurs such expenses—as where, by an illegal the same "in leather, boots, shoes, and action of Forcible entry and detainer, the mortgagee obtains possession of a ftannery and incurs any other trade that might be agreed expenses in working out the hides in tan, which on by the parties, at cash prices, ac-was the proper business and trade of the mortgagor cording to custom." To secure the pay-—he ought not, in equity, to be allowed such ex-ment of which, Mooney, on the same penses, at the cost of the mortgagor. day, executed to complainant a mort-Appeal from Clark Circuit Court in gage, or trust deed, upon the tract of Chancery. land aforesaid, and all the improve-ON. SHELTON WATSON, Cir-ments thereon ; also 168 beef hides ; 50 H cuit Judge. deer skins, and 13 kip skins, a portion for appellant. of which hides were then in tan ; also Flanagin & Cummins one wagon, one yoke of oxen, and all Watkins & Gallagher, for appellee. the hides of any description which ENGLISH, C. J. On the 14th of Sep-might come into the tan-yard between tember,1848,John S.Brinkley filed a bill the date of the deed, and 1st of March, 3414E ] *on the chancery side ' of the 1848, Mooney reserving the right of re-Clark circuit court, against Lazarus B. tailing leather in the usual course of Mooney and James R. Rogers, to fore—trade. The property was conveyed to close a mortgage, and for other pur-complainant in trust, and upon con-poses. dition, that if Mooney should pay the The allegations of the bill are, sub-amount of the above obligation, stantially, as follows : "which might be discharged in trade
JAN. TERM, 1856. MOONEY V. BRINKLEY. as specified in the face of the note," came into the hands of complainant as with interest, dm., on or before the 1st hereinafter stated. 342'9 day of March, *1848, complain-That by proper industry and atten-ant was to re-convey to Mooney the tion to business, Mooney might have premises ; but on default of such pay-paid the sums due complainant out of ment, complainant was empowered to the proceeds of the tan-yard, without advertise and sell the property for the a sale of the mortgaged property, payment of the debt, &c. The bond but after the execution of the and mortgage are exhibited. mortgage, he became dissipated, That, though the debt was due when was constantly intoxicated, loitered the mortgage was executed, yet for the about the dram-shops in Arka-purpose of favoring and indulging *delphia, and was utterly inca- r343 Mooney, so as to enable him to pay pable of attending to any business. the debt out of the proceeds and profits Finding that, in consequence of his of the tan-yard, without a sale of his dissipation, he was neglecting the tan-property, the mortgage was so drawn yard, permitting the hides to spoil and as not to be subject to foreclosuie until daily become dathaged, complainant the first of March, 1848. became convinced that Mooney was That, without the assistance of com-acting in bad faith towards, and had plainant, Mooney could not have estab-formed a settled design to defraud him. lished and carried on the tan- yard— He was utterly insolvent, and unless complainant having furnished all tools, complainant secured the mortgaged implements, provisions, &c., necessary property he would lose his debt. That to support the family and hands of after the season for procuring tan-bark Mooney, and paid the wages of the had passed, Mooney, in p ursuance of laborers engaged in establishing and his design to defraud complainant, carrying on the yard. s'old, or contracted to sell, all tan-bark That, after the execution of the taken and preserved by him for the use mortgage, complainant continued, as of the yard for that year, to a neigh-before, from time to time, to ftpnish boring tanner, and made an arrange-such supplies as were necessary to sup-ment to transfer all the hides in his tan-port the family of Mooney and carry yard, to another tan-yard; and was on on the tan-yard ; and the supplies so the point of carrying such design into furnished amounted to $219.49, a bill of execution. Complainant, under these the particulars of which is exhibited. circumstances, for the purpose of pro-After the yard was put into opera-tecting his rights, and prevent Mooney tion, complainant delivered to Mooney from carrying his fraudulent designs two lots of hides to be tanned on the into execution, on the 16th of June, A. shares oue-half for the other—the first D. 1847, brought an action, of unlawful lot consisting of 200 cow hides ; 21 kip detainer against him, in the Clark cir-skins; 81 deer skins, and one goat skin, cuit court, for the property mentioned for which Mooney's receipt was taken, in the mortgage, together with the tan-dated 6th February, 1847, and is ex-yard, all implements, tools, apparatus, hibited : The second lot, consisting of and all property of every description, 13 cow hides and 2 calf skins, as per attached to, or in any way connected receipt of 10th March, 1847, which is with said tan-yard; and on the same exhibited. That Mooney received day, by virtue of the writ issued hides from divers other persons to be therein, complainant was put into pos-tanned on the same terms, which were session of the premises by the sheriff. in process of tanning when the yard At the return term, September, 1847,
MOONEY V. BRINKLEY. VOL. 17 Mooney demurred to the declaration to be tanned, to be estimated by com-for misjoinder of causes of action; competent judges, and they were assessed plainant offered to file an amended at $72.92. That 53 of the hides, of the declaration, which the court would not value of $3 per hide, amounting to permit him to do, unless he would re-$159, and 75 deer skins of the value of store the personal property delivered $75, placed by complainant in the to him under the writ; he declined to hands of said Mooney, were hot to be do this, and judgment was rendered found when complainant came into in favor of Mooney on the demurrer. possession of the yard, but that Mooney He then moved the restitution of the had fraudulently converted them to property, which the court refused, and his own use. An account of the dam-both parties brought error. A tran-ages so assessed, and of the value of script of the proceedings is exhibited. the missing hides, amounting in the See Brinkley v. Mooney, 9 Ark. 445, aggregate to $306.92, is exhibited, and 449. complainant insists that upon an ac-That complainant, after thus obtain-count being taken in the premises, he ing possession of the premises, finding should be allowed that sum. the hides spoiling for want of atten-An inventory of all the hides found tion, and deeming it necessary to se-in the yard, when complainant took cure the amount due him by Mooney, possession of it, and finished by him, &c., kept possession of the tan-yard, showing which belonged to the yard, &c., hired hands and proceeded, which to complainant and which to 344. ]*at his own expense, to have all other persons, with an estimate of the hides, of every description, found the damages which had occurred in the yard, finished off and made into thereto, by the neglect of Mooney, is leather, which process of tanning and exhibited. That of these, 15 sides of finishing was completed about the 15th harness leather, 228 sides of upper July, 1848, and all the leather so fin-leather, 63 deer skins and 21 kip skins, ished held subject to the order of the belonged to the yard, being the tan-court. ner's share, were embraced by the That upon taking possession of the mortgage and subject to the pay-yard, complainant employed a compe-5 ment of the mortgage debt. [*345 tent person to take charge thereof, and That 15 sides of harness, 83 sides of superintend the same, who kept a cor-sole, 35 sides of upper leather, — deer rect account of the expenses incurred skins, and — kip skins belonged to by complainant in carrying on the complainant, being his half of such of yard, and completing the tanning of the remaining hides placed there by the hides, which amounted to 88.62, him to be tanned as were found in the 4 in account of which is exhibited, and yard when it came into his possession. he claims an allowance thereof, &c. And 266 sides of leather belonging to That by the neglect of Mooney, other customers. while he was in possession of the yard, That the names of the several cus-many of the hides being tanned therein tomers, and the hides which belonged were damaged, and among them those to them respectively, could be ascer-placed there by complainant to be tained by a book kept by Mooney, and tanned upon the shares. That after still in his possession, in connection the process of tanning was completed, with the remarks upon the hides ; and complainant caused the damages, complainant prays that Mooney may which had so occurred to his share of be compelled to produce the book, so the hides delivered by him to Mooney that the hides belonging to the eusto-
Jew. TERM, 1856. MOONEY v. BRINKLEY. mere, might be delivered to their prop-to his own use, 500 beef hides, 150 er owners, who were becoming clam-deer skins, 100 cords of tan-bark, 1 orous therefor. bark mill, 4 fleshing knives, 2 curry-That on the 1st of January, 1847, ing knives, 2 sets of instruments used Mooney hired a negro man of Duncan for fleshing leather, 2 sets of gearing, for one year, to cook in the tan-yard, 4 shovels, 4 spades, 4 mattocks, 50 hides at $— and complainant went his se-of leather, ten vats of leather or hides curity upon a note for the hire. When in tan, one negro man, one barrel of the mortgage was executed, by agree-train oil, the alleged property of ment, the amount of this note, less in-Mooney, of the alleged value of $3000, terest, was charged to Mooney and to his damage, as averred, of $5000, embraced in the debt secured by the which action was pending for trial ; a mortgage, complainant executing his transcript whereof is exhibited. obliaation to Mooney to pay the note That said complainant had not, at to Duncan, and save him harmless. any time, taken" any property from That the negro was engaged in the tan-said Mooney, except that above stated, yard w.hen complainant obtained pos-and in the manner and under the cir-session, and he employed him herein cumstances above detailed ; and that until the expiration of the time for said action of trespass was founded which Mooney had hired him, say six upon the supposed trespasses cammit-months and a half, and then delivered ted by the complainant in obtaining him to Duncan. possession of said property as afore-Complainant avers that he did not said, and none other. obtain possession, or dispossess Mooney The transcript of the trespass action of any personal property, except the shows that complainant interposed hides above described; a lot of tanner's three pleas to the action : 1st. Not tools of the value of $—, a list of guilty ; and 2d, and 3d, attempts to which is exhibited : said negro boy, justify under the proceedings in the and about 35 cords of tan-bark, worth unlawful detainer suit, to which last $35, which was used in tanning the two, demurrers were sustained, and is-hides. That all of said property ex-sue taken to the last. cept the negro, which had been deliv-That Rogers had sued Mooney for the ered to Duncan, and the tan-bark, purchase money of said tract of land, which been consumed in finishing the obtained jsdgment, issued execution, leather, was still in possession of the caused the land to be levied upon and complainant and subject to the order advertised by the sheriff for sale, and of the court. complainant was compelled, in order That the drunkenness of Mooney, to protect his rights under the mort-his neglect of the tan-yard, damaging gage, to pay the judgment, which he of the hides, fraudulent design to sell did, on the 11th September, 1848, 340f1 the tan-bark, ftransfer the amounting to $136.25, and took Rogers' hides, Sze., &c., forced complainant to receipt therefor, which is exhibited. resort to the action of unlawful de-He insists that Rogers should be com-tainer to obtain possession of the pelled to make Mooney a deed to the premises, &e., in order to protect his land, which he had not done in ac-rights, &c. cordance with his bond for title ; and That Mooney had recently brought that upon an account being taken bean action of trespass against complain-tween Mooney and complainant, he ant in the Clark circuit court, charg-should be allowed the sum so paid ing him with taking and converting by him to Rogers to remove the
MOONEY V. BRINKLEY. VOL. 17 incumbrance from the mortgaged injunction and restraining order were premises, with interest, &c. granted, as prayed, and a receiver ap-3479 *The bill prays that an ac-pointed to take charge of the personal count may be taken of the amount due property, &c. complainant upon the mortgage debt; At the March term, 1849, Mooney of the supplies &c., furnished Mooney filed his answer to the bill. by complainant after the execution of He admits that he purchased the the mortgage ; of the damages upon said tract of land of Rogers, at the complainants's hides occasioned by the price and on the terms alleged in the neglect of Mooney ; of the value of the bill ; that Rogers had obtained judg-missing hides; of the expenses of comment, and issued execution against plainant in carrying on and cornplet-him lor the purchase money, and coming the tanning of the hides ; of the plainant had paid off the judgment, amount paid Rogers by complainant. *though not at respondent's re- [41318 That Mooney be required to pay to quest. Avers that he was a tanner by complainant the amount found to be trade, and purchased the land for the justly due from him to complainant, purpose of establishing thereon a tan-upon the account so taken and stated ; yard, and carrying it on for his own and in default thereof, that the mort-benefit, and immediately after the pur-gage be foreclosed, and the property chase, commenced improvements there-specified therein, together with such on for that purpose. other of said property in possession of That prior to the 28th January, 1847, complainant as aforesaid, as he may be he had the tannery in operation ; had liable thereto, be sold for that purpose. $1000 worth of leather in the book, and That Mooney be perpetually enjoined a considerable amount of hides on hand from further prosecuting said aetion of not placed in tau, for which he was trespass, and from instituting or prose-then preparing vats, &c. He had made cuting said action of trespass, and from improvements on the land about the instituting or prosecuting any other ac-yard to the value of $1200 ; the hides tion at law against complainant in re-and leather on hand were worth $1200, spect of the property aforesaid. That and the tools, &c., and materials for Rogers be compelled to execute to tanning on hand, were worth $60. Mooney, or the person to whom the Admits that he was poor and pos-same may be sold under the foreclosure, sessed of no considerable amount of a deed to said land, &c. That a receiver property, except his interest in the tan-be appointed to take charge of the yard, but attributes his continued pov-leather and other personal property in erty and inability to pay his debts to possession of complainant as aforesaid, the unjust and fraudulent conduct of with instructions to deliver to the cus-complainant, &c. Denies that he tomers of the yard such portions of the solicited coniplainant to set him up in leather as belonged to them, and to business, but avers that complainant sell the remainder of the leather, and voluntarily offered to advance him other personal property, at public auc-$400, to aid him in setting up the tan-tion for cash, and hold the proceeds nery, to be repaid in leather within thereof subject to the further order of two years. He availed himself of the the court. That Mooney be required offer, and used the means furnished by to produce and place in the hands of complainant in putting the tan yard in the receiver the tan-yard books, &c., and operation. for general relief. Admits that they had a settlement On the filing of the bill, a temporary on the28th January, 1847, and he fell in
JAN. TERM, 1856. MOONEY V. BRINKLEY. VOL. 17 debt to complainant $1003.08, the prin-sessed, hides were continually coming cipal part of which was used by rein to be tanned, &c. That the retail-spondent in establishing the tannery ; ing of leather was a source of great but included the hire of Duncan's ne-profit, &c., and the confidence of the gro boy for the year . 1847, for which community in his efficiency, &c., in complainant was bound as security, business, was of great value to respond-Sze. That he executed to complainant ent, &c. That but for the fraudulent his bond and mortgage to secure the conduct of complainant in seizing upon debt, as alleged in the bill. the tan-yard, dispossessing respondent, After the execution of the mortgage, and depriving him of all means of and before respondent was dispossessed carrying on the business, he would by complainant, he had paid about 0 have been able by the 1st of March, on the mortgage debt ; received many 1848, to have paid for the land, dis-hides by purchase, and to be tanned on charged his indebtedness to complain-the shares, in the usual course of bus-ant, and still have on hand as large a iness, and had parted with little or no stock of hides and materials as when part of the leather, or stock, except in the mortgage was executed. Such was the payment of the $40 to complainant. respondent's calculation when the That by the terms of the mort-mortgage was made, and such the rea-gage respondent was entitled to sons why complainant voluntarily 3491 Cpossessioti of the premises, to agreed to extend the time of payment carry on business, and to retail his until 1st March, 1848. leather in the usual course of trade, He admits that after the execution until the first of March, 1848. of the mortgage, he continued to pur-That the supplies, tools, provisions, chase of complainant supplies, pro-&c., and everything furnished to revisions, &c., on credit for the support spondent 6y complainant, except the of his family, and the carrying on of cash to establish and carry on the tan-the tan-yard; disputes some of the yard, were sold to him by complain-items in the bill exhibited by com-ant on credit, as a merchant, at a profit, plainant therefor, and admits the 4 or-and were all included in the mortgage rectness of others. debt. He admits that complainant F350 He denies, however, that coMplain-delivered to him, to be tanned on ant furnished everything used in es-shares, the hides and skins mentioned tablishing and carrying on the tannery, in the bill, and described in his re-and avers that he obtained considera-ceipts therefor exhibited with the bill. ble means from other persons, and That he received many hides from used them for that purpose. other persons to be tanned on the same That it was fully understood between terms, which hides were in the tannery complainant and respondent, when when complainant seized it, &c. advances were made, that the latter He positively denies that after the had no resources of repayment, except execution of the mortgage, he was ha-his labor in, and the profits of, the bitually unfit for business from intoxi-tan-yard, and that no profits could be cation, or did, from any cause, neglect derived therefrom for about two years the business of the tannery, so as to after it was established, it being the sutler the hides to be damaged, Sic. custom of the country to tan hides That no hides or leather were injured upon the shares, &e. from neglect, want of skill, or inatten-That from the thne the yard was es-tion on the part of respondent or his tablished until respondent was dispos-hands, from the time the mortgage 13 Rep.
MOONEY V. BRINKLEY. VOL. 17 was executed, until the seizure of the to work therein. That in such action, premises by complainant. That in the sheriff nor any one else had a right 1846, about thirty hides were somewhat to interfere with the personal property, injured, but notre afterwards, while re- but by the fraud and contrivance of spondent controlled the tannery. That complainant the sheriff was induced to hides, in tanning, will often become put him in possession thereof. more or less injured by worms, even That since the filing of the bill, the with the utmost attention, and some supreme court had reversed the judg-of the hides may have been slightly ment of the circuit court in said action, injured from this cause. and remanded the cause, with leave He admits that he was sometimes in- to complainant to file an amended dec-toxicated about the time stated in the laration therein. bill, but avers that his habits before That respondent had not been in the and after the execution of the mort- tan-yard since complainant obtained gage were the same, and that he was possession of it, and knew nothing of not, from this or other cause, incapable his hiring hands or working out the of attending to his business, and did leather, &c. not neglect, or fail to conduct the tan- But he submits that inasmuch as nery, &c., with proper skill and atten- complainant turned him out of posses-tion. sion of the tannery, deprived him of He expressly denies all the fraudu- the means of carrying on his trade, to lent conduct and designs alleged which he bad been educated, of sup-against him in the bill. Denies that porting himself and family, and pay-the hides in process of tanning were ing his debts, &c., he nor his property suffering any damage from neglect ; or ought to be charged with any of the that he sold, or intended to sell the alleged expenses incurred by complain-tan-bark ; or that he contracted to sell, ant in consequence of his fraudulent or made any arrangement to sell, dis- seizure and possession of the tan-yard, pose of, or remove from the tannery, &c. That the amount of $888.62, ex-any hides, implements or other prop- hibited and claimed by complainant, erty connected therewith, except the as the amount of expenses incurred in ordinary retail trade in the tan-yard, preserving and finishing the leather, of the leather made therein, the right &c., was false and fraudulent, and to do which was expressly secured to trumped up to swindle the respond-him by the mortgage. That all such ent, &c. allegations of fraud and misconduct, He avers that all the hides, &c., de-were fabricated by complainant as a livered to him by complainant to be pretense for his unlawful proceedings tanned on shares, were in the yard in to dispossess respondent, deprive him process of tanning when complainant of the means of paying his debts, and took possession thereof, and positively reap himself the profits of the tan- denies that respondent over converted yard, &c. or disposed of any of them, as alleged 3511 'That for these purposes, and in the bill. not for the false reasons alleged in the Admits that the inventory exhibited bill, complainant brought said action with the bill contains about a correct of unlawful detainer, and thereby ob- account of the kip and deer skins in tained possession, not only of the land the tannery when he was dispossessed, and tannery, but of all the personal but not of the other hides and property connected with, or used in leather. That there was in the yard, the tannery, and the negro man hired when he was dispossessed, at least
JAN. TERM, 1856. MOONEY V. BRINKLEY. 352*1 now sides of hides and leather, competent man employed to superin-besides the kip and deer skins. Denies tend the tannery, &c. Denies the truth the Pstimated value of the leather con-of any causes alleged by complainant, tained in said inventory to be correct; for resorting to said unlawful detainer that any damage had occurred to the to dispossess him, &c. hides, &c., while he was in charge of Admits that he had brought the yard, and, and that all such damage an action of trespass against com-occurred after the seizure of complain-plainant in the Clark circuit ant, &c. court, which was pending there for That complainant had stopped the *trial, as alleged. Insists that, F353 trade, and broken up the custom and inasmuch as complainant fraudulently, credit of the yard, &c. and without authority, seized said per-Admits that he kept a book showing sonal property, respondent has the the names of customers and the hides right to prosecute said action, and re-that belonged to them, which he had cover exemplary damages, &c. Ad-tnrned over to the receiver. Doubts mits that the action was founded upon not but that the customers are anxious the seizure of complainant of the to get their leather, but is apprehen-property under the action of unlawful sive that complainant will defraud detainer, and not upon other or differ-them. Complainant had refused to ent trespasses. surrender the property, &c., to the reAdmits that Rogers had not made ceiver, as ordered by the court at the him a deed for the land; and submits previous term. that respondent is not responsible to That the hire of Duncan's negro in-complainant for the money paid by cluded in the mortgage debt was $162. him to Rogers on account of the land. Complainant took possession of him Admits his intention to prosecute when he seized the yard, &c., and kept his action of trespass, &c. him for the remainder of the time for Having fully answered, he prays to which he was hired, but respondent be discharged. did not know how he employed him, Rogers filed an answer admitting whether in the yard or otherwise. He that the allegations of the bill, as to had indemnified respondent against the him, were true, and expresiing a will-note for the hire, as alleged, &c. ingness to make a deed to the land, to That by said action of unlawful de-such person, and at such time, as the tainer, complainant got possession court might order, &c. of the tan-yard, implements, all Mooney filed the affidavit of the re-the hides and leather placed ceiver (March 27th, 1849), stating that there to be tanned on shares, complainant had not delivered to him including his own, all the leather, ma-the property which he was ordered to terials, &c., &c., belonging to respond-take charge of, though he had made ent—said negro man, &c. demand therefor, 25th September, 1848, He admits that complainant had not, &c. otherwise than by means of said action, Mooney also moved to dissolve the taken possession of any property of injunction upon the denials, &e., of his respondent. answer, &c. That respondent's habits were well-Complainant obtained a continuance known to complainant, and there was of the motion to dissolve, upon a no change in them after the execution showing that he could procure deposi-of the mortgage. That, when absent tions to support the allegations of the from the tan-yard himself, he had a bill, by the next term. He also made
MOONEY V. BRINKLEY. VOL. 17 affidavit that all the leather which he ing taken the depositions of about offered, in the bill, to surrender, had sixty witnesses), and the court being been safely kept in his ware house, unable to render a decree without a since the filing of the bill: and that, statement of accounts between the within twenty days after the order was parties, referred the accounts, with the made, appointing the receiver, he bad evidence, to the master, to state, adjust offered him the key of the warehouse. and report upon the same, directing That on the 28th of March, 1849, he him to ascertain: had turned over to the receiver all the The amount of the mortgage debt, property which he was ordered to take with interest: charge of, and taken his receipt there-The amount of supplies, &c., fur-for, which was produced and filed. nished by Brinkley to Mooney, after Replications to the answers were the execution of the mortgage, and filed, and the cause set down tor hear-before he was dispossessed: ing at the next term. The amount paid by Brinkley to 3549 4 'At the September term, 1849, Rogers, purchase money of the land: Mooney filed a motion to compel com-The amount of reasonable and eco-plainant to elect which suit he would nomical expenses incurred by Brinkley, prosecute; the action of unlawful de-in working out the stock on hand, tainer, or bill in chancery. when he took possession of the yard;tak-Complainant, thereupon, asked leave ing into consideration the value of the to file a supplemental bill, showing, *hire of negro boy for the resi- P355 that since the original bill was filed, due of the year, after Brinkley took this court had reversed the judgment possession of him, &c. of the circuit court in the action of The reasonable profits of the tan-unlawful detainer, and remanded the yard, , for each 3 ear, after Brinkley cause, with leave to complainant to took possession of it, giving Mooney file an amended declaration. That credit t herefor, and making annual complainant did not take out the man-rests, &c., and to report the balance, date (but that Mooney did), and had taken DO steps in the case since the The master made his report at the filing of the original bill, and intended September term, 1851. He charges to take none, the whole subject being Mooney with : before the court of equity, where all The amount of the mortgage debt, the matters in controversy between $1003.08, and intetest, &e. him and Mooney could only be prop-For supplies, &c., furnished by com-erly adjusted and settled. He offered plainant, after execution of mortgage, to account in the chancery cause for &c., $178.29, with interest, &e. the rents of the said real estate, while Amount paid Rogers by complain-in his possession, and to surrender it ant, $136.25, and interest, &c. For expenses, &c., incurred by com-to the receiver, to be leased pending plainant in working out the stock, the suit in chancery. Praying that after he took possession, 8627.90, with-Mooney might be restrained from re-out interest. quiring him to proceed in the action at The master credited Mooney with : law. Value of hire of Duncan's negro, for The court refused to permit the sup-remainder of year, after complainant plemental bill to be filed, and com-took possession of the yard, &c., plainant excepted. $87.75. At the March term, 1851, the cause Hire of Hart's boy, for getting bark, came on to be heard (the parties hav-&c., $18.75.
JAN. TERM, 1856. MOONEY V. BRINKLEY. Profits of tan-yard from 16th ofJu ne, That the money arising from the sale 1847, the time complainant took poss'ess of the mortgaged property, be applied: sion, until the date of the master's re-First, To the payment of the costs of port, at $e50 per annum, applying this suit : Second, To the costs of said these credits annually, so as to stop in-actions of trespass and unlawful de-terest in favor of complainant, &c. tainer : Third, To the payment of the The master reported against allow-amount which might be found due ing complainant anything for damages complainant from Mooney, in respect done his hides by Mooney, or for miss-to the matters charged in the bill, &e., ing hides ; thinking the proof left in and the residue be paid to Mooney. doubt, whether the damages, &c., oc-The court, upon the exceptions taken curred beforeplooney was turned out, to the master's report, decreed as fol-&c. lows : Both!parties 'filed numerous exceP-The complainant, instead of being tions to the Master's report. charged with the $250 per annum, pr4)f-The cause was finally heard at the its of tan-yard, from the 16th June, 1847, March term, 1852. as reported by the master, should only The court, upon the facts established be charged with the sum of $100 per an-in the case, was of opinion, that the num, on account of the rents !Ind complainant was entitled to the relief profits of said tan yard, from the 15th sought by the bill ; that it had juris-of July, 1848, the day the stock on diction of the matters in controversy ; hand when Ile took possession, wag that complainant was entille tooccupy finished up—annual rests being made the position of a mortgagee, and was —the sum being the amount the testi-not a trespasser in view of a court of mony in the case showed to be just and equity : and that even if a court of proper. The complainant was not equity had not cognizance of the !nat-chargeable with rents and profits of the ters in controversy, Mooney had failed yard during the time he used the to take the objection in apt time, and same in tanning out the stock on in proper form. hand. 3561 'ghat Mooney be perpetually That complainant was entitled to in-enjoined from further prosecuting his terest on the $727.90, amount of ex-action of trespass, or Instituting or pros-penses incurred by him in finishing up ecuting any, action at law, against com-the stock on hand from the 15th July, plainant, in respect of the property 1848. • aforesaid ; and that the said action of That the matter of s damages to trespass, and the said action of unlaw-complainant's hides, while in ful detainer be both dismissed, and the charge of Mooney, was not re-costs of each of said actions be charged ferred to the master, but that corn-upon the mortgaged property, &c. *plainant was entitled to au al- r357 That the said tract of land be sold lowance for any such damages as may by a commissioner, &c., the receiver to have occurred, and that the master, act as such, &c., and conveyed to the upon the subsequent reference, should purchaser : and that Rogers also make ascertain and report the same, &c. a deed to the purchaser. That the re-That complainant was entitled to ceiver sell the leather and other prop-credit for $18, paid by him for Mooney erty placed in his hands under the to Hart, for negro hire, &c. previous order of the court; and that All the exceptions taken by Mooney, he have the money arising from sales to the report of the master (extending in court, by the next term, &c. to all the items in it), were overruled,
MOONEY V. BRINKLEY. VOL. 17 except the one founded on the objec-the possession of the premises : and he tion that the master had not credited hired hands, furnished materials, and him with the value of the tools which completed the process of tanning and came into possession of complainant, finishing into leather all thA hides in but were not embraced in the mort-the yard. The appraisers summoned gage. And the court ordered that the by the sheriff, at the tilne the writ of master should take an account of the unlawful detainer was executed, valued value of such tools, and credit Mooney the land and improvements at $1,000, with the value thereof, as of 16th June, and the personal property, including 1847. all the hides in the yard, tools, hire of The matters of account were, there-Duncan's negro, &c , at $1,000. Other fore, re-committed to the master, with witnesses made a lower estimatelof the directions to correct and re-state the value of the land and improvements. same, in accordance with the princi-The profits of such tan-yard were vari-ples above settled, aud the directions ously estimated. The witnesses exam-aforesaid, and that he report at the ined by the master, supposed it would next term of the court, &c. produce, with the number of vats sunk Mooney appealed from the decree to by Mooney, $1,000 worth of leather per this court. annum, at a profit oat 25 per cent., or The testimony conduces to prove $250. That the rent would be worth that complainant was an honest, cor-about $100 a year. rect business man. That Mooney, This is morely the outlines of the after purchasing the land of Rogers, testimony, which is quite voluminous, went industriously to work, and by the but a detailed statement of it is not assistance of complainant, who fur-deemed necessary. nished the means, established the tan-1. The defendant submitted to an-yard, erected a dwelling and other im-swer the whole bill, and did not, by provements upon the land. He was in demurrer, nor in his answer, object to the habit of taking a "spree" occa-the jurisdiction of the court of equity sionally ; but when at home, was usu-over any of the matters set up in the ally sober, hard-working, and attentive bill. Having thus submitted the cause to business. Before, and about the to the cognizance of the court, it was time he was dispossessed, he seems to too late for him upon the hearing, and have become quite dissipated—was it is too late here, to object to the juris-frequently seen drunk in Arkadelphia, diction, unless the court were wholly sometimes lying upon the benches incompetent to grant the relief which about the dram-shop doors, and occa-complainant sought by the bill. Lud-sionally in the streets ; and, though, low v. kSim,nds, 2 Cains' Cases in Error when at home, and sober, he was gen-40, 56 ; Underhill v Van Cortlandt, 2 erally found industriously occupied in Johns. Ch. Rep. 360; Hawley v. Cra-his business, perhaps a portion of the mer,4 Cow. 727; Grandin v. Leroy, 2 hides in the yard were damaged to Paige Ch. Rep. 509. It is better for some extent, for want of proper care both parties, after protracted and ex-and attention. On this point, however, pensive litigation, that all the matters in controversy between them, con-there is a conflict of testimony. He nected with the mortgage and em-had hands employed, who were in braced by the bill, should be finally charge of the yard, &c., in his absence. settled.' When he was dispossessed, he and his 1. If the jurisdiction be questioned for the first 35839 *family were turned out into time in this court, it will be retained if there was a vestige. Stroud v. Van;ant, 30-39, and cases cited, the woods, and complainant put into Hicks v. Hogan, 36-303.
JAN. TERM, 1856. MOONEY V. BRINKLEY. 2. It is manifest, from the face of defendant, he could have been entitled the mortgage, that Mooney was enti- to reasonable and necessary expenses, tled to the possession of the land, im- incurred in so doing. provements thereon, and other prop- But in this case, the comprainant , erty embraced in the deed, with took upon himself the responsibility of the right to carry on the unlawfully thrusting the defendant out tanning business, retail leath- of the premises, and taking them under tr in the usual course of his own charge, some eight months 3594 ] *trade, &c., until the 1st of and a half before the maturity of the March, 1848. He had no other means mortgage, thereby depriving the de-of discharging the debt, and no other fendant of the privilege of working out resources seem to have been relied the stock by his own labor, and of all upon by the parties. On the maturity other profits which he might have de-of the mortgage, the complainant had rived from the tan-yard. Some of the the power of sale, if the defendant was witnesses supposed the defendant could in default. have made as much as $1,000 a year. The complainant had no legal right, Thus the con2Oplainant placed [*360 therefore, on the 16th of June, 1847, by himself in the position of a trespasser: the action of unlawful detainer, to dis- of one in possession without any legal possess the defendant, as he did, of the right or color of title. Under such cir-premises, and take them into his own cumstances, we know of no principle possession. The action was prema- of law or equity which gives him any ture, as to the real property, and just claim to be allowed the expenses wholly unwarranted as to the personal which he thought proper to incur in property. 1 Ala. Rep. 729; 41d. 746, connection with the positiou which he and authorities cited. had so assumed. If the defendant was guilty of intox- We must hold, therefore, that the ication, inattention to business, and court below erroneously allowed him the mortgaged property was suffering the $727.90, for such expenses, with damage or waste from his neglect, &c., interest. as alleged, the remedy of the complain- 3. The court below, also, most ant was by'an application to a court of clearly erred in taxing the costs of all equity, to place the premises in the three of the suits upon the proceeds of hands of a receiver, and he had no the mortgaged property, which was, in right to seek redress by an unwar- effect, charging upon defendant all the ranted and abusive use of the action at expenses of the litigation. Had the taw, to which he resorted. Cooper V. complainant prosecuted his claim of Davis, 15 Conn. Rep. 556. unlawful detainer to final judgment, Had the complainant come lawfully it is manifest that he must have failed into the possession of the premises, therein, and been taxed with costs. It after the maturity of the mortgage, is equally clear, that defendant would and default of payment, he would have succeeded in the action of tres-have been accountable for reasonable pass, or at least, that he had good rents, and would have been allowed grounds to bring the action, and might the costs of necessary repairs, until have recovered his costs therein, had foreclosure, &c. 4 Kent. Corn. 166. he not been enjoined by complainant. And, doubtless, upon principle, if he It is, moreover, manifest that com— had completed the process of tanning plainant was compelled to resort to and finishing the stock of hides on equity, and filed this bill, mainly, hand into leather, for the benefit of for the purpose of relieving him-
VoL. 17 s:df from the embarrassments and responsibilities consequent upon his illegal steps to dispossess the defendant. We think, therefore, that he ought, in justice, to be taxed with all three of the suits. In all other respects, we think the decree of the court below is correct, and will be affirmed. But so much of tbe deree as is above held to be erroneous, must be reversed and the cause remanded for further proceedings. Hon. C. C. Scott, Judge, absent. Cited:-18-590; 28-56; 30-91; 36 303.
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.