Rice v. Wilburn.

Many of the States, as well as our own, have statutes which authorize the levy and sale of equitable estates. Such, most strictly, was the estate held by Washington; he had an equitable right under his contract to the land upon the payment of the money. If this right is raised to that of mortgagor and mortgagee the result is the same. Place Washington in the place of mortgagor, executing a mortgage to Rice to secure the payment of the purchasemoney, as was held to be the legal effect of such contracts, in Smith v. Robinson, 13 Ark. 534, and still the right of the mortgagor (Washington) was liable to be taken in execution. The levy is made, not strictly upon the lands, but upon the equity of redemption. It was this alone that Wilburn purchased. The lagal presumption is, that he only purchased or intended to purchase such interest as the defendant in execution had. Such was the decision of this court in Hanger & Moody v. State, 27 Ark. 673.

But we find that, in this case, on the 9th of April, 1861, judgment was rendered in the Circuit Court of the United States for the Eastern District of Arkansas, against Washington, upon which execution was issued, and by the marshal of this district, levied on the lands in controversy on the 5th of January, 1867, and thereafter, on the 4th day of March, 1867, sold to Fanaley, and by him to defendant Wilburn, who, three days after this sale, bid for and bought the same land under an execution in favor of Rice for the price of twelve dollars. Conceding the sale of the 11th of March to be valid (and we are not collaterally permitted to question its validity), then whatever estate, whether legal or equitable, which Washington held, passed with it, but, of course, subject to the prior lien of Rice for the purchase-money, and consequently, at the sale made on the 13th of March, under Rice's judgment, there was nothing left to be sold belonging to Washington. Hilliard, in his work on Mortgages, page 66, says: "While a mortgagor is considered as owner against all but the mortgagee, a debtor, after such levy, has not strictly any estate or interest in the land. He is not a freeholder; he has only a possibility or right to an estate on the payment of a certain sum of money. The law presumes that he has received the full value of his estate, and the right of redemption still reserved to him is a mere personal privilege to ke his own land if he does not wish to part with it at its full value." Looking beyond this to the sale made under Rice's execution, after the return day of the execution, and without intending to express any opinion with regard to sales of personal property which

Marr v. Lewis.

remain in custody of the sheriff after the return day (in support of the validity of which there are some adjudicated cases), we very much question the validity of the sale of real estate after the return day of the writ, and without a writ of venditioni exponas directing the sale of the property.

Without extending our inquiry, upon the present occasion, as to the validity of a sale of real estate made after the return day of the execution, and without a ven. ex, for that purpose, we feel satisfied, upon principles of equity and upon the authority of the decisions to which we have referred, in holding that when the payment of a debt is secured by a mortgage lien on property, or by an express reservation in the contract of sale, and judgment at law is rendered upon the debt so secured, the equity of redemption, being all the interest that remains in the mortgagor, may be levied upon and sold in satisfaction of the debt, without discharging the lien thus reserved by contract.

It is the equitable right of redemption, not the land, which is sold, for that is the only interest in the mortgagor, and as a consequence, all that the purchaser buys.

Whether the purchaser, by the payment of the entire mortgage debt, thus discharging the lien, may be subrogated to all of the rights of the mortgagor, or whether the mortgagor may not, after sale of the property, by discharging the mortgage debt and paying to the purchaser the money bid on the land, place himself in posi tion to assert his equitable rights, are questions not now before us for consideration.

Let the decree of the court below be reversed and set aside and the cause remanded, with instructions to render a decree in favor of plaintiffs, in accordance with the prayer of their bill.

MARR V. Lewis.

(31 Ark. 203.)

Marshaling assets.

Marshaling securities will not be allowed where it would work injustice to interested third persons.

So, where A owned a mortgage on land in part of which the mortgagor's widow claimed a homestead, and B held a mortgage on the other part, it was held, in an action of foreclosure on A's mortgage, that he should not be decreed to sell first the part in which the homestead was claimed.

VOL. XXV. — 70

A

Marr v. Lewis.

CTION of foreclosure. The opinion states the facts.

A. W. Bishop, for appellant, L. Marr.

Rose, for Caroline Marr.

McCain, for Lewis.

WALKER, J. On the 9th January, 1871, Herbert Marr conveyed, by mortgage deed, several tracts of land to James M. Lewis, to secure the payment of $1,000; afterward, on the 8th of November, 1871, he conveyed by mortgage deed part of the same lands to Lorinda Marr, to secure the payment of $2,000. On the 28th of November, 1871, Herbert Marr married and settled upon the north-west quarter of section 34, with his family; he continued to reside upon the land with his family until 1873, at which time he died, leaving the defendant Caroline Marr, and infant children. upon the land. She was appointed administrator of Herbert Marr's estate. Lewis, to whom the first mortgage was given, filed his bill in the Drew Circuit Court against Lorinda Marr, to whom the second mortgage was executed; James F. Barron, her tenant, in possession; Caroline, the widow and administratrix; and the unknown heirs of Herbert Marr.

The defendant, Lorinda, answered, admitted the truth of the allegations in plaintiff's bill, states that she has a mortgage on part of the land described in the mortgage executed to plaintiff, describes the land embraced in her mortgage, by legal subdivisions, and makes a copy of her deed an exhibit to her answer; states that the deed was given to secure the payment of $2,000, which is unpaid, and concludes her answer, or more properly, her statement of facts, as follows:

"The premises considered, the defendant prays that her rights in the premises may be properly protected; that the securities herein may be marshaled by the court; that the defendant's mortgage may be declared a lien upon the land herein described, subject to the rights of the plaintiff; that the plaintiff may be required first to exhaust his security on the land mentioned in the complaint, not embraced in the defendant's mortgage; that the equities of the several parties interested may be barred, and that the lands described in this answer may be sold to satisfy this defendant's mortgage, after the payment of plaintiff's demand."

Marr v. Lewis.

The defendant, Caroline Marr, also admitted the material allegations of the bill, and set up her right to the north-west quarter of section 34, which had been mortgaged to plaintiff, but not to the defendant, Lorinda; states that her husband, before his marriage with defendant, lived upon this tract with his mother; that the land was his; that he continued to reside upon it with his family until his death in 1873; that defendant is his widow, resides upon and claims this quarter section as her homestead.

The parties submitted an agreed statement of facts in regard to the homestead, to the following effect: That in January, 1871, Herbert Marr was unmarried, owned the land in controversy, but never lived upon it, had never kept house, lived with his mother and sisters, rented a house in Monticello, Drew county, in the summer of 1871, never resided upon the land in controversy until after his marriage.

The case was submitted to the court upon the pleadings, exhibits and this evidence. The application of the defendant, Lorinda, to marshal the assets was refused, and without reference to the homestead claim set up by defendant, Caroline, a decree was rendered in favor of plaintiff for his debt, with order of sale of the land.

The defendant, Lorinda Marr, has appealed to this court, her claim to marshal the assets was asserted upon the well-established rule, that where one creditor has a security upon two funds of his debtor, and another creditor has security for his debt on only one of these funds, the latter has a right in equity to compel the former to resort to the other fund, if it is necessary for the satisfaction of both debts; but it is also a well-established rule, that the right of the party having a claim upon both funds is not thereby to be prejudiced; and that the rule is to have no application when the effect of it would be to do injustice to the common debtor, or operate inequitably on the interests of others. Ayres v. Husted, 15 Conn. 504. A court of equity will never displace or impair one equity for the purpose of asserting or upholding another.

In the case under consideration, the plaintiff had a mortgage lien upon the north-west quarter of section 34, the defendant, Lorinda Marr, had none, but she wished this tract first sold, in order to protect her mortgage lien. It was upon this quarter section that the dwelling-house and farm lately occupied by Herbert Marr was situated; the defendant, Caroline Marr, resided upon, and claimed it as her homestead; it is true that this tract was in

Fife v. State.

cumbered by the plaintiff's mortgage lien, but if the other property mortgaged to the plaintiff should upon sale prove to be sufficient to pay the mortgage debt, then the homestead would have been unincumbered, and to have required this property to be first sold, would have deprived her of the benefit of her homestead claim, and for this reason the application of Lorinda Marr to marshal the assets, so as first to expose this tract to sale, should have been refused.

The act prohibiting the carrying of any pistol as a weapon was intended to proscribe such pistols as are usually carried concealed upon the person, and not such as are ordinarily used in warfare, and therefore does not infringe the constitutional privilege of the citizen to bear arms. (See note, p. 561.)

CHARG

HARGE of unlawfully carrying a pistol as a weapon. The opinion states the facts.

Gallagher & Newton, for plaintiff in error.

Henderson, Attorney-General, contra.

ENGLISH, C. J. Alfred Fife, the plaintiff in error, was charged before a justice of the peace of Jefferson county, with carrying a pistol as a weapon, contrary to the act of 16th February, 1875, convicted and appealed to the Circuit Court, where he was tried anew, and again found guilty; moved for a new trial, which was refused; final judgment rendered against him for the fine imposed by the jury, and he brought error.

One witness testified, on the trial, that he was walking down a street in Pine Bluff, about the 17th of September, 1875, when he met plaintiff in company with one Terry, near Trulock's bank. Plaintiff had a banjo under his left arm, and a pistol in his hand.