67 Ark. 444 | Ark. | 1900
(after stating the facts.) It appears that the lands in controversy are claimed by the appellees, as heirs of Israel H. Adler, deceased, who in his lifetime was a partner of Aaron Hirsch. The appellants claim under a sale of these lands by virtue of pluries executions at law, issued on a judgment at law, rendered, as they claim, against Aaron Hirsch as surviving partner of Hirsch & Adler, for the recovery of a partnership debt. The suits in which these judgments were rendered were commenced by actions of debt, in which attachments were issued and levied upon the lands of Aaron Hirsch. Only constructive service was had upon Aaron Hirsch, and no personal judgment was rendered against him. The judgments were rendered against “the defendant,” without further designation or description. The lands were attached “as the property of the said Aaron Hirsch.” The writ of attachment directed the attachment of Aaron Hirsch (of the late firm of Hirsch & Adler) by all and singular his goods, chattels, lands and tenements, and contained a summons, which commanded the sheriff to summon Aaron Hirsch (of the late firm of Hirsch & Adler) to be and appear etc. The declaration was upon a joint and several obligation of Hirsch and Adler, and stated: “Your petitioner, Andrew Allen, the plaintiff in this cause, states that he is the legal owner of a note against the defendant Aaron Hirsch and Israel H. Adler, late merchants and partners doing business by the firm name and style of Hirsch & Adler (the said Israel Adler, deceased, not sued herein) etc. The execution commanded the sheriff to cause to be made the debt recovered against “the said Aaron Hirsch.”
Without discussing the various questions raised in this case, suffice it to say that the court is of the opinion that all the proceedings in the causes against Aaron Hirsch by Allen & Cox, in which the sales of the lands in controversy are claimed by appellants to have been made, were had against Aaron Hirsch in his individual capacity, and not against him as surviving partner of Hirsch & Adler, and there were no judgments in said causes that bound the estate or authorized a sale of Adler’s interest in said lauds, or any interest other than that of Aaron Hirsch, which was the only interest seized under the writ of attachment, and commanded by the court to be sold. Aaron Hirsch was proceeded against individually in the complaints upon which the attachments were issued, was constructively summoned only, and no personal judgment was or could have been rendered against him. The ground in the affidavits for the attachments was that Hirsch was a non-resident of the state. The court finds that the appellees were not estopped nor barred by limitations or laches; also that the appellants were not entitled to be subrogated.
We find that the sw. 'Á of the nw. 1á of section 21, which was included in the decree in favor of appellees, is not claimed by them in their complaint; but the nw. X of the sw. X of section 21, (both in township 13 north, range 8 west) is in the bill. The bill of complaint desczlbed one piece of land claimed as a part of the sw. fractional X of section 5, containing 54 acres, being a part of the land for which Hess was sued. This description is defective, but the answer of Hess described it as “that part of sw. fractional X of section 5, west of White River, containing 54 acres,” and having been acquired 24th of March, 1879, from W. E. Davis, administrator of Theophilus Edmondson, who purchased the same, as is alleged in the complaint; thus curing the defect in the description, and identifying this tract as part of the lands claimed by both plaintiffs and defendants to be part of the lands of Hirsch & Adler. We think the statement of the answer in regard to se. X of the se. X of section 6 cures the misdescription of this piece in the complaint.
The object of the suit of appellees is to obtain a clear title to an undivided half on the lands held by Hess and the Case heirs that belonged to Hirsch and Adler, and to have a partition and division of said lands.
We think the claims of Hess are covered by their title to an undivided half. The decree is affirmed except as to the sw. X of the nw. X of 21, not claimed in the bill of complaint, as to which the decz’ee is modified by leaving this piece out.