Wilson v. Slaughter, 53 Ark. 137

Wilson v. Slaughter

53 Ark. 137 | Ark. | 1890

Per Curiam.

1. Coparcenary estate-ApproEdwin Jones was the owner of the land, the proceeds of the sale of which are now in dispute. mortgaged it to secure the payment of the debt of his brother, John I. Jones. Edwin died intestate, and John I., being one of the heirs, inherited a third interest in the land. It does not appear that Edwin has any other estate, and as John I. has been wholly insolvent all the while, we take it, there is none. The land was sold under the power in the mortgage after Edwin’s death, and the fund in dispute remained after paying the mortgage debt.

Under these circumstances, if John I. were seeking a distribution of the fund, he would take nothing, because the full share to which he was entitled had been appropriated to the payment of his debt. It would stand as though he himself had previously drawn out his share of the fund.

2. Pyrchas<=rat 1<mo' If a part only of the land had been taken under the mortgage to satisfy John I.’s debt, and the residue had stood for partition among the heirs of Edwin, a court of equity would not have awarded John I. any part of it; but as between him and his co-heirs, it would have treated him as having mortgaged his interest in the land, and the purchaser at the mortgage sale as having succeeded to his rights. The appellants substantially concede that John I. Jones could not have enforced any claim to the fund. But Littell, for benefit a share of the fund is claimed, purchased the interest of John I. Jones in the land at execution sale with actual knowledge of all the facts and of the equities of the appellees. Under such circumstances, the purchaser takes no greater right than the debtor himself had. Pindall v. Trevor, 30 Ark., 249; Allen v. McGaughey, 31 Ark., 252; Newman v. Davis, 24 Fed. Rep., 609.

Let the judgment be affirmed.