141 Ark. 262 | Ark. | 1919
A. J. Matthews in his lifetime owned the south half northeast quarter section 34, township 8 north, range 20 west, and executed a mortgage thereon, in which his wife Lavissa joined, to one T. M. Neal, to secure a debt of $1,650. Matthews died, and a suit was brought against his widow and heirs to foreclose this mortgage. In the decree rendered in that cause it is recited that L. E. Barton tendered into court the sum of three thousand dollars as his bid for the land, and that bid was accepted and a commissioner appointed to execute a deed to Barton. The mortgage debt,which appears to have been reduced to the sum of $744.50, was ordered to be first paid, and the sum of $1,600 was ordered appropriated and applied to the payment of the purchase price of the south half southwest quarter section township 8 north, range 20 west, which the °w had bought as a homestead for herself and he- children, and the remainder was ordered to be pai¿ to certain of the children. This decr»« was rendered December 11, 1916.
There w"- e ten of theso cliiMio-», 0ne of whom was nam»^ -¡siary J. Matthews, and against who*». a judgment for $720 was rendered in the chancery court on Septos ber 16, 1916, in favor of one J. W. Turnbow. On November 1,1916, Mary J. Matthews executed to her mother a deed to her interest in the land in section 34, and about that time the other adult children did likewise.
On September 13, 1917, an execution issued on the Turnbow judgment, which was levied on the undivided interest of Mary J. Matthews in the lands in section 34, whereupon Barton brought suit to restrain the sheriff from selling that interest. A decree was entered in that cause on October 19, 1917, in which the court found that the interest of Mary J. Matthews in the land in - 34, after discharging the mortgage iwcctedness, wa $200, and that Turnbov wag entitled to receive, by virtue of his -judgment and execution thereunder, the sum of $200 from the sale of said land. Tho court thereupon ordered that Barton pay to Turnbow the sum of $200. whereupon he “should be subrogated to all the rights ot said J. W. Turnbow under said judgment to the extent of the present interest of the said Mary J. Matthews as heir.at law of the said A. J. Matthews.” No question is raised as to the validity of either of these decrees.
Thereafter Lavissa Matthews, the widow of A. J. Matthews, brought' this suit against Barton and Mary J. Matthews to quiet her title to the land in section 26; and an answer and cross-complaint was filed by Barton, in which he prayed that he be subrogated to all the rights of J. W. Turnbow ag’ainst the said Mary J. Matthews in and to her one-tenth interest in the estate of- A. J. Matthews, deceased. The relief prayed by the widow was granted, and that prayed by Barton was denied, and this appeal has been prosecuted from that decree.
The court properly denied Barton’s prayer for subrogation, for* the reason that he had paid a portion only of the debt c*ie Turnbow. In Richeson v. National Bank of Mena, 96 Ark. 601, w^moted from Bank of Fayetteville v. Lorwein, 76 Ark. 245, *^following statement of the law:
“Before Ane surety can claim the right to tin, Wiprfrt ¡my of the securities, he must first pay the entire debt of the principal for the payment of which the securities were given. As is' said in the case of Bank of Fayetteville v. Lorwein, 76 Ark. 245: ‘The right of subrogation can not be enforced until the whole debt is paid, and until the creditor be wholly satisfied, there ought to and.can be no interference with his rights or his securities which might, even by bare possibility, prejudice or embarrass him in any way in the collection of the residue of his claim. ’ Sheldon on Subrogation, sec. 127; 4 Pom. Eq. Jur, sec. 1419, 27 Am. & Eng. Ency. Law 210; McConnell v. Beattie, 34 Ark. 113, and cases cited Bank of Fayetteville v. Lorwein, supra.
See also ShelMon on s.wa'tion (2 Ed.), secs. 14, 70; Jones v. Harris, 90 Ark. 51, 55; Plunkett v. State Nat. Bank, 90 Ark. 60, 80, State ex rel. Luck v. Atkins, 53 Ark. 303; McConnell, Admr., v. Beattie, Admr., 34 Ark. 113; Schoonover v. Allen, 40 Ark. 132, 137, 138; Receivers of N. J. Midland Ry. Co. v. Wortendyke, 27 N. J. Eq. 658; Morrow v. U. S. Mortgage Co., 96 Ind. 21; Lumberman's Ins. Co. v. Sprague, 59 Minn. 208, 60 N. W. 1101; Muller v. Flavin, 13 S. D. 595, 610; Featherstone v. Emerson, 14 Utah 12; Kyner v. Kyner, 6 Watts (Pa.) 221.
Decree affirmed.
