| Ark. | Apr 30, 1906
(after stating the facts.) There are in this case two appeals, one by the administrator ad litem of the estate of Joseph Meehan, the other by Mrs. Malinda M. Plair. The appeal of the administrator ad litem brings before us for review the trial and judgment against the estate of Meehan in favor of plaintiff for $.1,840. The testimony tends to show that Meehan was indebted to the plaintiffs for mules, horses and other property sold to him by them for a considerable sum. The complaint alleges this sum to be $3,121.63 and that no part of this debt had been paid.
The plaintiffs introduced at least some competent evidence tending to prove his debt, and this evidence was not contradicted. We see no reason for reversing this judgment in favor of plaintiffs, even if it be conceded that the court admitted incompetent evidence in support thereof, for strike all of that out, and the undisputed evidence remaining not only'supports this judgment, but shows that plaintiffs were entitled to a greater sum than that for which they recovered judgment. They did not appeal, and the administrator ad litem of Meehan has no right to complain that the judgment against him is less than the proof shows Meehan owed. The judgment in favor of plaintiffs against the estate of Meehan for $1,840 will therefore be affirmed.
The appeal of both of these defendants presents a number of questions in reference to the rulings of the trial court on admission of evidence tending to show that plaintiffs had reserved title to eighteen mules and to other property attached by them. It will not be necessary to discuss these rulings on the admission and rejection of evidence bearing on this claim of reservation of title for the reason that we are of the opinion that the question of reservation of title can not be considered in this case, for this is not an action to recover the property, but to recover the purchase price thereof. When this debt became due and was unpaid, the vendors, T. M. Dodson & Son, if they had reserved title until the price was paid, had their election to take either of two courses. They could elect to retake the property, and thus in effect cancel the debt, or they could bring their action to recover the debt, and thus affirm the sale and waive the reservation of title. They chose the latter course, brought their action for the debt, and attached the property as belonging to defendant: By doing so they waived the right to claim the property as their own, and all the evidence admitted to show a reservation of title was improperly admitted, and the instructions given on that point were erroneous and prejudicial, because under the pleadings that question was not before the court for decision. Jones v. Daniels, 67 Ark. 206" date_filed="1899-11-18" court="Ark." case_name="Dudley E. Jones Co. v. Daniel">67 Ark. 206; Baker v. Brown Shoe Co., ante, p. 501.
If the action to recover the debt had been brought in ignorance of the fact that the defendant had mortgaged all his property to the intervener, Mrs. Plair, then it is possible that if plaintiffs, on discovery of that -fact, had promptly dismissed their action for the debt, and elected to retake the property, the courts might have permitted them to do so. Jones v. Daniels, 67 Ark. 206. But nothing of that kind was done. The plaintiffs are still claiming their debt, and now have a judgment for the same, and in our opinion their reservation of title has been completely waived, and is no longer a question in the case. Plaintiffs have now only a claim for their debt. The defendant is dead; and as the attachment levied by plaintiff has been dissolved, and plaintiffs have taken no appeal, plaintiffs have no lien on the property or proceeds thereof. They have only a judgment against the estate of the defendant, upon which no execution can be issued against the property of the estate, and the order of the court directing that a certain proportion of the money arising from the sale of the attached property be turned over to plaintiffs was, under the view we take of the facts, erroneous. This money belongs to the estate of Meehan unless the mortgage to Mrs. Plair is valid; and if that be so, then so much of it as arose from the proceeds of the sale of mortgaged property is subject to the payment of the mortgage debt. But, while the jury sustained this mortgage, they did not determine the amount of the mortgage debt. As the attachment brought by the plaintiffs was dissolved, and as their reservation of title has been waived, the question now as to who is entitled to the money arising from the sale of the attached property is one between the intervener, Mrs. Plair, and the estate of Meehan.
After consideration of the matter, we are of the opinion that the judgment in favor of plaintiffs for $1,840 should be affirmed; that in other respects the judgment should be reversed, and the cause remanded for further proceedings to determine the amount due on the mortgage of Mrs. Plair, that, upon -such amount being ascertained, the money in the hands of the court be applied to the payment of the same, and that the balance' of the money, if any, be turned over to the administrator or legal representatives of Joseph Meehan, deceased. It is so ordered.