ANTHONY v. PEAY. VOL. 18. ANTHONY ET AL. P24 V. PEAY ET AL. The heir cannot maintab, a suit, in equity or at law, for the unpaid purchase money of land sold by his deceased ancestor, though there may have been no administration on his estate. (Lemon's heirs v. Rector et al, 15 Ark. Rep 43i.) It is a fatal defect in a dem ee for the purchase money of land sold by a person since decea-ed and for which the porcha,er has not r. ceived a deed, to require him to 'nate full payment, while he is to receive title to the premises front less than the whole number of heirs of th. deceased vendor. Where a pa. ty to a bill in equity avails himself of a legal defense, for the first s tate, in the appellate court, it is the usual course of equity practice to tax him with costs. A bill will not be dismissed "without prejudice" where there is not much probability that the complainant could derive any benefit from further litigation. Appeal front thc Circuit Court of Pu-laski county in chancery. TION. WILLIAM H. FEILD, Circuit Judge. Pike & C'unzinins, for the appellants. Fowler: for the appellees. SCOTT, J. Tfie original bill was filed by Samuel D. Blackburn, against all these parties as well as others. Upon the hearing it was dismissed, and no appeal was taken. It will be unnecessary, therefore, in the view we take of. the case presented by the appeal before
JULY TERM, 1856. ANTHONY V. PEAY. us, to state its purport. The cross-bill the buildings, and at different times constitutes the suit out of which all executed two several mortgages upon the questions presented to this Court the property to the bank, with power arise. of sale. Intervening in point of time It was not an independent cross-bill, between these two, she executed a but the joint answer of the Peays to third mortgage to McQuaid. Besides Blackburn's original bill, containing these mortgage liens, mechanic's liens special iuterrogatories touching numer-were also fixed upon the property. ous allegations against the appellants, Mrs. Neill was also otherwise indebted; 251 tJames .C. Anthony, the bank of and finding herself much embarrassed the State of Arkansas, William Field before the completion of the buildings, and other co-defendants in the original she leased the property, thus encum-bill. bered, to James C. Anthony for a term It is set out that Juliet Peay was the of five years, at the rate of two thous-only child and heir at law of Letitia and dollars per annum to be paid by Neill. That they were both dead. That him quarterly, with a stipulation that the heirs of Juliet Peay were Gordon he should complete the improvements N. Peay and themselves, her children, aud reimburse himself out of the fifth and George N. Pope and Ann Neill *year's rent. Her creditors seem [.26 Pope, her grandchildren. The mother not to have been satisfied to wait to of the latter, Mary G. (wife of William be thus paid. Anthony failed to pay F. Pope), being dead. It may be also his first quarterly installment of rent. stated here, that Major Peay, the father Suit had been instittited by Brown, of some of these heirs, and the grand-who held a lien alleged to be para-father of the other, was also dead ; mount to the mortgage lien of the that during the progress of the cause, bank, and the property was levied upon the two children of Mr. Pope died also, and sold at his suit. The bank also and that both of the suits were abated proceeding to sell under her mortgages. as to them, upon suggestion and proof The proceedings of both are alleged to of their death, but in neither was Wm. be irregular and invalid. During all F. Pope made a party, either com-this time, it is alleged that Anthony plainant or defendant. Gordon N. and his confederates were continually Peay released all interest that he might endeavoring to purchase the property ; have in the controversy, to his brothers at the same time he delayed and finally and sisters, and filed his disclaimer. refused outright to pay the rent due by The complainants in the cross-bill him. Finding no other mode of relief, then proceed to set out a great variety she yielded to the solicitations of An-of matters at considerable length—the thony and his confederates, and sold entire transcript sent up numbering him the property at the price of twenty near five hundred pages. But the point thousand dollars—she covenanting to upou which the cause must inevitably make to hint title in fee simple with be determined, can be presented by the usual covenants of warranty, and a brief general statement. Letitia Anthony covenanting, simultaneously, Neill, the grand-mother of the Peays, to assume, and pay to the State bank, complainants in the cross-bill, was the the whole of her indebtedness, esti-owner, in fee simple, of the lots upon mated at about nine thousand dollars; which is the "Anthony House" in the also her indebtedness to William city of Little Rock. She borrowed Brown, estimated at three thousand, from the State bank, divers sums of three hundred dollars; also her indebt-money to expend in the erection of edness to the estate of Ann L. Byrd,
ANTHONY V. PEAY. VOL. 18 dec'd, estimated at seven hundred and with his covenant, became so embar-eighty-nine dollars and seventy-six rassed that he, in his turn, was also cents, and other debts she might direct compelled to sell the property. Before and require, not exceeding the whole doing so, however, he had assumed in of the purchase money altogether—de-the bank ;,he amount of Mrs. Neill's inducting, however, from the amount of debtedness, and also an amount which the purchase money, in the first in-extinguished Brown's lien debt (on ac-stance, the price of a tract of land, be-count of which, the bank had bought ing $1,600, and the price of two negro the property, and by quitclaim re-men, being $2,000, and the price of cer-leased it to Anthony upon his afore-tain horses, cattle and bogs, being $500, said assumpsit), and other liabilities of which Anthony covenanted to convey Mrs. Neill, to an aggregate sum of over to, and deliver into the possession of twelve thousand dollars. Thomas W. Newton, in trust, for Mrs. He sold the property to Philip L. Juliet Peay during her life, and at her Anthony, and also sold him all his real death to her children, share and share and personal estate in Arkansas, ex-alike : and any residue of the pur-cept certain lands, horses, cattle and chase money not used in the payment farming utensils, the land which he of the debts specified, and to be spe-had agreed to secure in trust for Mrs. cified, and not thus deducted there-Peay, and one of the negroes. In con-from, Anthony to pay to Newton, sideration, Philip, with James Lawson, upon the same trusts, in equal install-Jr., as his security, bound himself to se-ments at 6, 12, 18 and 24 months, in cure to him for his life, the use Of cer-Arkansas Bank notes, and secure the tain negroes under a deed of trust made payment of the same by mortgage in Virginia, to pay his bank debt, also upon real estate. certain debts due by him to the Real Anthony being in possession un-Estate Bank, and to exonerate him der his lease, retained it un-from all liabilities incurred by him in 27'1 *der this purchase, there being a the State of Arkansas up to that period. further stipulation in the contract of Afterwards, upon Mrs. Peay's relin-purchase and sale, that, in the event quishing, as well as Mrs. Neill, all in-of his failure to comply ; the rent was terest iu one of the negro men, which to accrue, as under the lease ; otherwise, he had agreed to convey in trust for it was to cease. A memorandum of Mrs. Peay and her children, he con-debts to be paid Anthony, seems to veyed the other negro man and the have been furnished him by Pope, as tract of land, according to his covenant agent for Mrs. Neill, upon which ap-with Mrs. Neill. His pretense for re-pear, not only the debts above specified, quiring this relin*quishment as to r28 but also a further debt to McQuaid of one of the negroes, was, that his several $3,000, one to Woodruff of $226, one to assumpsits of Mrs. Neill's debts, the L. N. Clark of $249.65, one to Simpson liens upon the property and his ad-of $255.40, and one to Morrison &Sulli-vances for her, added to the value of van of $400. The Brown debt being the land, and the one negro conveyed, put down upon this memoradum in were equal to the whole purchase mo-two items : First, the amount of his lien ney of the Anthony house property. upon the property, $2,135.12 ; and, It seems that the property in question secondly, his debt not secured by lien, was afterwards mortgaged to Mrs. $1,200. Mary S. Anthony, and was afterwards It seems that Anthony, in a short conveyed in trust to Albert Pike, aud time, having but partially complied ultimately fell into the hands of John
JULY TERM, 1856. ANTHONY V. PEAY. Brown ; but it will be unnecessary to bin decreed that the sales under the pursue its history any further. mortgages and under Brown's judg-The cross-bill, proceeding to allege ment, were null and void, and canceled that no administration had ever been them, and the conveyances under had on either the estate of Mrs. Neill, them. And then decreed that the com-or of Mrs. Peay, and that no debts ex- plainants had a lien upon the property isted against either, prayed answers, for all of the $20,000 remaining unpaid, and an account, and that, after giving with interest, according to the contract to J. C. Anthony credit for all actually of sale, adjudging that the evidence did due him, including $1,600 for the land, not prove it to have been paid in full, and $1,000 for the negro, complainants and that the unpaid balance ought to might have a decree against him, P. L. be paid to the complainants, and if not Anthony and James Lawson, with en- paid within a reasonable time, the prop-forcement of lien for the same ou the erty ought to be sold for the payment .premises, and sale thereof under decree of it. It was, therefore, referred to a for satisfaction. special master to take an account of It seems unnecesSary to state all the what was so still due to the complain-answers to the cross-bill. Pike, Mary ants, as heirs and legal representatives S. Anthony, Philip, and James C. of Juliet Peay and Letitia Neill, upon Anthony and Field, all filed their an- said contract of sale and purchase, in swers. James C. Anthony, among doing which he should be guided by other things, answers that on the 3d of said contract, and allow only such pay-September, 1843, he effected a final set- ments as had been made, under the tlement with Mrs. Neill, and obtained stipulations, or by expr&ss directions of her receipt in full satisfaction of his Mrs. Neill: and that this should be done covenants on the purchase of the An- according to the depositions already thony house property. And he ex- taken and on file, and not suppressed hibited with his answer such a receipt or declared incompetent: resorting to endorsed on the back of the original additional testimony, to be taken in covenant, to which the name of Pope writing, only to explain or elucidate an d wife appear as witnesses, and facts already in part established by tha along with it, he exhibited a statement pleadings and evidence: and that he of various sums, which he had assumed allow Anthony, without further proof, and otherwise advanced for Mrs. Neill, the several items of sugar, coffee, ba-on account of this purchase, and of rents con, corn and other like articles of nec-for the property, amounting to the essary family supplies, annexed to and aggregate sum of 821,061. This receipt exhibited with his answer, applying was assailed by the cross-bill as a the several credits to their respective forgery, and testimony was introduced dates, and computing interest up to the for and against it. There was consider- first day of th,-! succeeding term, when able other testimony taken as to other report was to be inade. And it was fur-matters, which it will be unnecessary ther decreed, that upon the confirma-to set out. tion of the report, or of its modifica-The court below, upon the tion and final adjustment, James C. whole case that was before it, Anthony should pay the ascert -tined dismissed the original bill, and balance, and upon his failure to do so, denied Blackburn all relief ; with or the failure of the bank, Philip L. 29*1 *which we have nothing to do, as Anthony, Mary S. Anthony, or Albert already remarked--no appeal as to that Pike to do so for him, the property t having been taken: and upon the cross- be sold by the master, and the title o f
ANTHONY V. PEAY. VOL. 18 all the parties to be conveyed by him evidence that they had ever been paid. to the purchaser: And in case of pay-The court sustained these exceptions, ment without sale, then the complain-and again referred the matter to the ants should execute to Anthony a deed master, directing him to allow of these in fee for the property, subject to the items only such sums as the evidence rights of the other delendants,who have shows to have been actually paid by 30'. ] *purchased under him, or under James C. Anthony, or other persons the bank. And all the costs in the for him, uuder the stipulations ot the cross-suit were decreed against James contract of sale and purchase, or by ex-"C., Philip L. and Mary 8: Anthony, press directions of MN. Neill or her the bank and Pike, joi..tly—no decree agents. The residue of the report was having been entered as to Lawson, confirmed, and the appellants appealed although the bill as to him had been be-to this court. fore taken as confessed. The principles, applicable as well The master reported, allowing as in equity as at law, upon °which [.31 credits, for the bLnk debts $8,660, and the decree must be held erroneous, interest $2,055.01: Brown's debt, $1,200; are declared in the case of Lem-McQuaid's debt, $3,000; Walters' (adm on's heirs v. Rector et al ,15th Ark. of Byrd) judgment of $748.82; Wood-Rep. 336.' The recovery of the sup-ruff's j udgment,$230.65; Clark's $240.16; posed balance of purchase money Simpson's, $253.82. Land,$1,600; negro, ought to have been sought by au ad-$1,000; bacon aud family supplies, and ministration. These heirs were not one yoke of oxen, $152.74; in all— entitled to recover it. Whether the $19,580.55; and he made the balance, if court below adjudged correctly, that a payable in specie, $748.57; if in Arkan-balance of the purchase money for the sas bank paper, then in specie value, Anthony house, upon the sale and pur-$561.43. chase by Mrs. Neill and J. C. Anthony, He stated this account upon the tes-was still unpaid : and whether or not, timony in the case, as passed upon by the special master accurately ascer-the court, and indicated in the decree; tained this balance, we have not con-no further testimony having been of; sidered with any view to absolute de-fered him. He excluded from the ac-termination—these questions being count, not only family supplies, but totally immaterial to that presented all other sums that appeared to have by the case; because, although this may been payments on account of rents, or be all so, these heirs are not to be al-for repairs or improvements of the lowed to recover such balance, either premises, considering all such matters at law or in equity, according to the as not embraced in the order of refer-doctrine of the case above cited. ence. The rights of heirs and distributees To this report the complainants ex-are surbordinate to the rights of credit-cepted:first, an to the allowance of the ors of a deceased person : and the law McQuaid debt, $3,000: secondly, as to intervenes between them an officer of $748.82, amount of the Watkins debt; its own, whose functions they have no thirdly, as to $230.65, the Woodruff warrant to usurp at will. Although debt; fourtMy, the Clark debt, 8240.16; these heirs, apparently pro forma, aver fifthly, the Simpson debt, $253.82,—up-in their cross-bill, that there are no on the ground that, as to the Watkins debts or liabilities against either of the debt, the evidence showed that only estates of Letitia Neill or Juliet Peay, $45.450 had been actually paid, and as the case made by them distinctly to the other three, that there was no 1. See n te 1. Leinou'$ heirs v. Rector, 15-.42.
JULY TERM, 1856. ANTHONY Nr . PEAY, thows that this is not true. On the it. It disregarded J. C. Anthony's contrary, their exception to the mas- clear legal right to set off any claim of ter's report, which the court sustained, his for overpayment on account of proceed, openly, upon the ground that rents, by way of advancements and im-there are debts against the estate of provements upon the premises, against Letitia Neill, which have never been Mrs. Neill or these heirs claiming unpaid. der her. Although it might be con-Thus, not content with the master's ceded, as claimed by these complain-report, which exhibited a balance, ants, that these charges of Maj. An-'which they might have been ultimately thony for improvements, were, by the entitled:to, after the satisfaction of cred- terms of the lease, to be deducted out itors—including of course, and subject of the fifth year's rent, yet it would not to any deduction therefrom, necessary follow that, because the lease was af-to liquidate any balance due J. C. An- terwards abrogated by the sale, he was thony on account of over payments by not to be paid at all. him of the rent, which, the master re- Why the court below should have al-ports, was excluded from his computa- lowed the master to take into his com-tion—they sought by these exceptions putation bacon, sugar, coffee, aud other to recover moneys to which they had family supplies, and forbid him as to not the slightest claim, either at law other advances, and for the expendi-or iu equity,.because iu equity belong- tures for improvernents,upon the prem-ing to these creditors, whose rights ises, wehave not been able to divine. -were paramount to theirs. As against creditors of Mrs. Neill, If courts of equity could permit these complainants are but donees, and 82*] such parties to usurp the *func- yet this decree, in eflect—upon a bill, tions of administrators, they could, to which some of them are uot even consistently with the principles upon made defendants, and when no ex-which they proceed, do so only upon ecutor or administrator is made a de-the condition that the fund should be fendant to protect the rights of cred-brought into court, and then, undtr itors :—so perverts the law, as to make its immediate supervision and sanction, the rights of the donees paramount administered according to the adminis- and prior to those of creditors. tration law of the land. The decree, as well as other And besides this insuperable objec- portions ' of the proceedings, is tion to the decree, there are several *open to other observations and [*33 other minor ones equally fatal to it, just criticism: but it seemS unnecessary that are obvious. Its effect is to re- to pursue the matter further,as the case• quire a full payment of the purchase must go off, as we have said, upon the money by Anthony, while he and doctrines of the case above cited. those under him are to receive title to But as these doctrines were not in-the premises, with an exoneration from voked by the appellants, until since the mortgage lien upon it as declared the case has come into this court, it by the court, from less than the whole seems an equitable ground upon which number of heirs, who have such lien, to withhold costs from them. They if the decree stands: because Wm. F. ought, at least, to have raised this Pope is not included among those re- question at the hearing below, in order quired to convey to Anthony, and he to have exonerated themselves from a by law, takes from his " deceased chil- liability to be taxed with dosts upon a dren not only their interest in the pur- reverSal here for such a cause, accord-chase money, but also the security for ing to the usual course of equity prac-
VOL. 12 tice. Epps v. Van Denson, 4 Paige R. 76, and oases there cited. Hitchcock v. Scribner; 3 Johns. Cases 321. Clark v, Long, 4 Randolph R. 452. Shepherd's Exr. v. Stark, 3 Munf. R. 29. Richardson's Exr. v. Hunt, 2 Id. 148. Whiting v. U. S. Bank, 13 Peter's B. 14. Harding v. Hardy, 11 Rheaton B. 104. We shall accordingly reverse the decree and dismiss the cross-bill, at the costs of the appellants, both in this court aud the court below. And although, within our discretion, we might direct this dismissal to be without prejudice to any rights of these complainants as heirs of Mrs. Neill and Mrs. Peay, against the defendants in the cross-bill ; yet from the pleading and evidence in the cause, which we have looked through, there is so much reason for believing that further litigation would only subject them to useless and unnecessary expense, from which there is much probability they could derive any benefit, that this course would seem but encouragement to fruitless litigation. Of course, &editors of Mrs. Neill, or any administrator ui)on estate, cannot be effected in any way by this dismissal. English, C. J., not sitting in this case. Cited : —18-319-448 ; 21-173 ; 22-535 ; 31-625-724; 41-314 ; 46-469 ; 33-147.
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.