| Ark. | May 15, 1886
In the case of Sheppard v. Thomas, 26 Ark., 617, decided in 1871, it was ruled that a vendor’s lien for unpaid purchase money, though expressly reserved in the deed of conveyance, was not assignable. That case was, in effect, declared to have been wrongly decided, in 1873, in the case of Campbell v. Rankin, 28 Ark., 401; but as the rule announced in Sheppard v. Thomas had, in the meantime, been changed by statute as to transactions occurring after its passage, the case was not in terms overruled. When the appellant here, who is the assignee of notes given for the deferred purchase price of lands — a lien for the payment of which was expressly reserved in the vendor’s deed of conveyance — sought to foreclose this lien, the circuit court followed the case of Sheppard v. Thomas, and dismissed his cross-bill upon demurrer. He prosecuted an appeal to this court, and the decree against him was reversed. As the sale was made before the statute, and was not governed by it, the court, through Justice Harrison, in delivering the opinion, expressly overruled Sheppard v. Thomas, saying that was the practical result of Campbell v. Rankin. See Taliaferro as Executor v. Barnett, 37 Ark., 511.
When the case was remanded after this decision, Barnett, the appellee, filed an answer to the cross-bill, alleging that the lands were conveyed to him after the purchase notes were assigned and before the case of Sheppard v. Thomas was overruled, and argued that he had, therefore, a vested right to hold the lands freed of the lien. The special judge who sat in the case overruled a demurrer to this answer, and decreed against the plaintiff in the cross-bill, and he has appealed the second time.
It is apparent that the answer offered no defense.
A decision of this court is adhered to in all subsequent stages of the same case, although it may be clearly erroneous. It becomes an adjudication between the parties to the suit from which the supreme court itself is not, upon a second appeal, at liberty to depart. But strangers to the suit acquire no such right, nor, indeed, any right to the decision in any case, further than it may be as a guide to their conduct. An exception is made, by statute, as to some criminal acts. Mansf. Dig., sec. 634.0. A decision of the court when overruled stands as though it had never been, and the court in the reversing judgment declares what the rule of law was in fact when the erroneous decision was made.
When erroneous precedents have become a rule of property, the tender regard the courts entertain for interests that have grown up under and are dependent upon them, causes them to stand by the established error. The doctrine of. stare decisis is then the prevailing rule. The theory is that less harm will result in such a case from preserving the stability of judicial decision than from ascertaining what is theoretically or actually right; for the change, if made, necessarily relates back to the time' the law came into force. But this is a rule of policy merely, that addresses itself to the discretion of the court upon consideration of the erroneous decision.
Upon the first appeal, in this case, it was definitely and finally settled that it was, and always had been, the general law of this state that a vendor’s lien, expressly reserved in the deed of conveyance, was assignable, and it is the unchangeable law of this case.
Let the decree be reversed, and-the cause remanded with instructions to enter a decree for the plaintiff in the cross-bill, unless a valid defense be interposed...