60 Ark. 390 | Ark. | 1895
(after stating the facts). The contentions that, the intestate having died in Tennessee, and the appellant being still a resident of that State, the administration is ancillary, and therefore appellant is without interest or relief therein, and also that appellant’s claim was not authenticated before suit commenced, not having been made in the court below, are mere suggestions that cannot be heard in this court for the first time.
This is not a suit by appellant on breach of the covenants contained in her husband’s deed to her; and, the estate of the grantor being solvent, the interests of creditors are not involved. The suit is on the note of the husband, in the hands of a purchaser and assignee — his widow in this instance. There is no proof of set-off or counter-claim in behalf of the estate, and we cannot see any ground upon which the claim should have been disallowed. The appellant, as assignee of the note, stands in the place of the assignor, and has an option of remedies that may be resorted to in such cases. On the other hand, the appellee, especially since the estate is solvent, stands in the place of the deceased as to appellant’s claim. Without, however, going into the doctrine of estoppel by deed or covenant, or attempting to assert anything as a rule on the subject, it is sufficient to say that a vendee has not the option, ordinarily, to compel his vendor to resort to the specific property for his debt, which he (the vendee) has conveyed to a third party by warranty deed, unless there is a stipulation in his deed to the third party to that effect, or, perhaps, legitimate proof of the same otherwise.
The decree of the court below is therefore reversed, and decree will be entered here for appellant, and the same will be certified down for allowance, classification and probation.