| Ark. | Jun 11, 1923
(after stating the facts). It appears from the record that the Farmers’ & Merchants’ Bank had a valid mortgage on the undivided interest of O. A. Rushing in certain cotton raised by him, and that the First National Bank had a mortgage on the interest of J. S. Roy, a share-cropper of Rushing, in the same cotton.
One of the grounds relied upon by appellant for a reversal of the decree is that appellee had given Rushing permission to sell the cotton,, and had thereby lost its mortgage lien. Both Rushing and DuBard, the cashier of the Farmers’ & Merchants’ Bank, denied that that bank gave Rushing permission to sell the mortgaged cotton. They both testified that the Farmers’ & Merchants’ Bank gave the First National Bank permission to sell the cotton, because they both had separate mortgages on separate undivided interests in the cotton. It was understood that, when the cotton was sold, Rushing’s interest in the proceeds should be turned over to the Farmers ’ & Merchants’ Bank and applied towards the payment of his mortgage indebtedness to that bank.
It is true that the cashier of the First National Bank contradicted this testimony, but the chancellor found in favor of the Farmers’ & Merchants’ Bank on this point, and it cannot be said that his finding is against the preponderance of the evidence. Hence it became the duty of the First National Bank to turn over to the Farmers’ & Merchants’ Bank the sum of $123.13, which was the amount received by it from the sale of Rushing’s interest in the mortgaged cotton. The Farmers’ & Merchants’ Bank and the First National Bank each had a mortgage on an undivided interest in the same cotton. The parties had a- right to agree to a private sale of the mortgaged cotton and to apply the proceeds of the sale to the mortgage indebtedness, respectively, of Rushing and Roy. This, by agreement of the parties, amounted to a foreclosure of the mortgage at private sale, and the refusal of the First National Bank to pay the proceeds-arising from the sale of Rushing’s interest in the cotton to the Farmers’ and Merchants’ ¡Bank amounted to a conversion of the same by it, and made it liable therefor to the Farmers’ & Merchants’ ¡Bank. In short, the refusal of the First National Bank to pay over to the Farmers’ & Merchants’ Bank the amount received by it frorri the sale of Rushing’s interest in the cotton amounted to a conversion of the proceeds, and rendered it liable to the Farmers’ & Merchants’ Bank therefor.
It is next insisted by counsel for appellant that ap-pellee, having been allowed to intervene in the suit in the circuit court filed by the Retail Lumber Company against 0. A. Rushing as defendant and the First National Bank as garnishee, could not subsequently withdraw from that suit, and that the judgment of the circuit court in favor of the Retail Lumber Company against First National-Bank, garnishee, settles the issues and precludes the Farmers’ & Merchants’ Bank from recovering against the First National Bank in the chancery case. That would be true if that suit had proceeded to judgment before the Farmers’ & Merchants’ ¡Bank had been allowed by the court to withdraw from it. The record shows that its intervention in that suit was dismissed without prejudice, and that the present suit was instituted by it against the First National Bank on the same cause of action before judgment was rendered in the circuit court in favor of the Retail Lumber Company against the First National Bank as garnishee.
It is insisted by counsel for appellant that, if appel-lee is allowed to recover against it in this suit, it will have to pay twice. -That is true, but the fault is with appellant. As we have just seen, the intervention of ap-pellee in the circuit court was withdrawn without prejudice, and the present suit was begun in the chancery court before the case in the circuit court came on for hearing. Notwithstanding the pendency of the suit in the chancery court, the appellant allowed the Retail Lumber Company to take judgment against it by default ■in the circuit court. No doubt this was done with the desire to favor the Retail-Lumber Company, because the officers in that company and in the First National Bank were practically the same. The First National Bank had a right to favor that company in any way it could legitimately do so, but it had no right to favor it to the legal prejudice of the Farmers ’ & Merchants ’ Bank. The latter had the right, by permission of the court, to withdraw from the suit in the circuit court without prejudice, and to institute a new suit on its own account on the same cause of action against the First National Bank. If the latter bank wished to avoid payment twice, it should have defended the garnishment suit in the circuit court and not have allowed judgment to be rendered against it by default. Not having done so, it took the chance of the Farmers’ & Merchants’ Bank’s recovering the proceeds arising from the sale of Rushing’s interest in the cotton in the chancery court.
Appellant made no objection to the appellee dismissing its intervention in the suit in the circuit court, and is not now in -an attitude to complain of the court’s action in allowing the dismissal without prejudice.
In this connection it may be said that no objection was made by appellant to appellee’s bringing suit against it for the conversion of the mortgaged cotton in the chancery court.
The decree of the chancery court will therefore h¿ affirmed.