text:
    Hartford Fire Insurance Company v. Citizens’ Bank of Booneville
    Opinion delivered December 15, 1924.
    1. Insurance — rights of assignee of fire insurance policy.— Where insurance companies, without consideration, assented to the assignment of fire policies after loss, the assignees had no greater rights against the insurers than the insured had, and took subject to prior garnishment proceedings against the insured in another State.
    2. Garnishment — proceeding'in another state. — Where insurance companies garnished in Oklahoma on account of a debt owing under fire policies to a resident of Arkansas, answered, setting ' up all facts and giving assignees of the policies residing in Arkansas notice of the pendency of the action, and had them interpleaded under the Oklahoma statute, held the Oklahoma court acquired jurisdiction to render judgment against the assignees, barring them of interest in the policies to the extent of the judgment against the principal defendant, who was properly served.
    3. Garnishment — jurisdiction.—The amount due to a resident of this State on fire policies is subject to garnishment in another State, where service was had in that State on the insurers, and service was had in this State according to the Oklahoma law upon the insured and his assignee.
    4. Garnishment — foreign judgment — full faith and credit.— A judgment of another State, in all things regular, is entitled to full faith and credit in this State.
    Appeal from Logan Circuit Court, Southern District ; J ames Cochran, Judge;
    reversed.

      Bittenhouse <fc Bittenhouse, John P. Boberts.and Thompson, Knight, Baker & Karris, for appellants.
    1. The Oklahoma court had authority and jurisdiction to try and determine the garnishment suit, and to render judgment therein. Chap. 3, art. 9', Comp. Statutes Oklahoma, 1921, §§ 353, 356, 366; 113 Ark. 467,169 S. W. 223; 49 Ark. 386, 96 S. W. 397; 69 Ark. 401, 63 S. W. 996; 174 U. S. 710,43 L. ed. 1144; 198 U. S. 215, 49 L. ed. 1023; L. B. A. 1915F, 881, note; 54 So. 728; 53 OkhE 515; 157 Pac. 106. .
    2. The judgment of the Oklahoma court is entitled to full faith and credit, and renders the issue in this case res judicata, to the extent of that judgment. Section 1, art. 4, Const. U. S.; Bevised Statutes U. S., § 905, U. S. Comp. Stats. 1916, § 1519, 3 Fed. Stat. Ann., 37; 91 Ark. - 252; 120 S. W. 993; 240 U. S. 620, 60 L. ed. 829; 169 Pac. 619; 134 N. W. 573 (la.); 10Ó N. W. 918 (Mich.); 25 N. W. 49 (Mich.); 9 N. W. 646 (Neb.); 141 S. W. 595 (Mo.), 53 S. E. 831 (N. C.); 115 S. W. 275 (Tex.); 66 N. E. 43 (Ind.) ;■ 104 N. W. 878 (New); 53 S. E. ,831 (N. C.); 45 111. App. 533; 35 Ala. 144, 73 Am. Dec. 484; 11 Mass. 256; 28 C. J. 384; Id. 399.
    3. The defendants, having tendered to plaintiffs the balance due on the fire loss over and above the amount of the Oklahoma judgment and costs, said plaintiffs were not entitled to judgment for- more than the amount so tendered and the cost .then accrued.

      Evans <& Evans, for appellees.
    1. By assignment of the polices and the written consent thereto by the insurance companies, the latter ceased to have 'any contractual relations with Donothan with reference to the subject-matter covered by the policies, and entered into contractual relations with appellees, and, by this new contract, agreed to pay the loss, when adjusted, to the appellees, respectively; and the appellees had the right to sue on this new contract without joining Donothan as a party to the suit; 97 Me. 547; 94 Am. St. Bep. 521; 14 B. O. L. 1004, § 182; 123 G-a. 181; 51 S. E. 429; 3 Ann. Cas. 372, and note; 40 Pac. St. 289; 80 Am. Dec. 573; 10 W. Va. 546; 27 Am. Bep. 593; 56 Am. Dec. 749, note; 3 Ann. Cas. 477, note.’
    2. The Oklahoma court had no jurisdiction to try and determine the garnishment suit, or to render any judgment therein affecting the rights of the appellees in this suit. Where there is no jurisdiction‘s personam nor in rem, there is no jurisdiction at all. The undisputed evidence is that there was no res of Donothan within the jurisdiction of the Oklahoma court, and that he himself was not within its jurisdiction. 243 U. S. 269; 61 L. ed. 713; 49 Pac. 48; 71 Vt. 457, 76 A. S. B. 787; 44 S. C. 9'5, 51 A. S. B. 794.
    3. A judgment of the court of another State which is rendered without jurisdiction of the person of the defendant or without seizure of any of his property, is not a judgment entitled to full faith and credit. It is void. 123 Ark. 42; art. 4, § 1, U. S. Const.; Bev. Statutes U. S. § 905; 151 Pac. 879; 48 Ark. 151; 105 Ark. 5; 95 U. S. 714, 24 L. ed. 565: 181 U. S. 155, 45 L. ed. 794; 201 IT. S. 562, 50 L. ed. 867; 9 D. 'C. L. 515; 226 H. S. 551, 57 L. ed. 347.
   Wood, J.

These actions were instituted in the Logan Circuit Court, February 21,1923, by the respective plaintiffs below (appellees here) against the respective defendants below (appellants here). The actions were to recover on fire insurance policies issued by each of the respective appellants in favor of one F. L. Donothan, a resident of Booneville, Arkansas. The policies covered a theater building and its equipment. ' The appellants are foreign insurance companies doing business in this State, and had an insurance agency at Booneville through which these policies were negotiated.

The property insured was destroyed by fire on January 26, 1923. On the 30th of January, 1923, Donothan, the insured, for a valuable -consideration, assigned the policies to the appellees, with the express consent of the appellants indorsed1 thereon. On the 8th or 9th of February, 1923, the terms of the policy as to notice and proof of loss were duly complied with. The amount due under the policies was payable in sixty days after proof of loss.

On February 12, 1923, an action was instituted in the district court of Oklahoma County, Oklahoma, by the Vitograph, Inc., against Donothan, for an alleged indebtedness on a contract in the sum of $600'. Writs of garnishment in that action were issued and served on the appellants, garnishees, to impound the proceeds of the policies in the hands of the appellants. Donothan, the defendant in the action, and at that time a citizen of Booneville, Arkansas, was served with process according to the statutes of Oklahoma. The garnishees, appellants, were likewise duly served with process in the Oklahoma action, and they answered alleging that they were not in any manner indebted to Donothan, the defendant in the action, and did not have any real estate or personal effects in their possession in which he had an interest. They denied liability to him, and further set up that the court was without jurisdiction, and that the proceeds of the insurance policies issued to Donothan were not subject to garnishment.

Thereafter, on March 24, 1923, the appellants filed their amended answers in the Oklahoma suit, in which they set up that they were liable for loss on the policies issued to Donothan, and that an action had been instituted against them by the appellees, assignees of the policies, in Arkansas, to recover said loss, and that they had on hand the proceeds of the amounts due under the policies, which they held subject to the garnishments and assignments mentioned. They alleged that, since the service of the writs of garnishment upon them, the assignees of ’the policies, the appellees herein, had brought suit in Logan County, Arkansas, to recover the' sums due under the policies, and they prayed that the appellees be required to interplead in the Oklahoma suit, to the end that “the rights of all parties may be adjudicated in this ■action, and that these garnishees be not vexed with two suits for the same debt and be compelled to pay the same twice. ’ ’

The appellees were thus made parties defendant to the Oklahoma suit, and were duly served' with process in that action under the Oklahoma law, and directed to answer within twenty days after such service. The defendant Donothan and the appellees failed to' appear and plead in the Oklahoma action, and they were adjudged by the Oklahoma court, on May 5, 1923', to be in default. The cause in.the Oklahoma court came on for trial on May 7,1923, and judgment was rendered in that'action in favor of the plaintiff, the Vitograph Incorporated Company, against the defendant Donothan, in the sum of $600, with interest, total $668.30.

The court also rendered judgment against the appellants. Against the Philadelphia company in the sum of $368.88, and the Hartford company in the sum of $645.55, an aggregate sum of $1,014.43, as the proceeds of the policies in their hands as 'garnishees, and commanded them to pay the sum of $668.30 into court, and also the sum of $72 to cover interest pending an appeal in the Oklahoma Supreme Court, amounting in the ■ aggregate to the sum of $740. The Oklahoma court, in its judgment, further. ordered that the appellees, who were interpleaded and made defendants in that action, be forever barred from any right or interest in the proceeds of the policies to the extent of the above judgmént. The appellant insurance companies duly prosecuted their appeal from the judgment of the Oklahoma district court to the Supreme Court.

At the beginning of tbe trial of this action, tbe appellants tendered the appellee in open court tbe sum of $274.13 in settlement of all claims against tbe appellants, tbe amount being tbe balance of tbe proceeds of tbe • policies in tbeir bands over and above tbe amount of tbe Oklahoma judgment. In tbeir answers in this action the appellants pleaded tbe disclaimer and interpleader statutes of Oklahoma, pursuant to which tbe Oklahoma action and proceedings were prosecuted, and also pleaded tbe judgment of tbe district court of Oklahoma in bar of tbe present action to tbe extent of that judgment.

There was testimony on behalf of tbe appellees to ¡the effect that Elkins was tbe local agent of tbe appellants at Booneville, and issued tbe policies to Donotban; that tbe property covered by tbe policies was destroyed by fire about tbe 26th of January, 1923. He consented, acting for tbe appellants, to tbe assignment of the policies by Donothan to the appellees after tbe loss occurred. A few days after the assignment of tbe policies, a man by tbe name of Kincannon came to see witness, to get him to give tbe name of tbe companies issuing tbe policies. Witness refused, and told him tbe policies bad been assigned to the appellees;

r Witness Kincannon testified that be was an attorney at law in Booneville, Arkansas; that, a few days after tbe loss covered by the policies, a man by tbe name of Myers, claiming that be represented the Vitograph Inc. Company, came to see witness. He retained witness’ services. Witness interviewed Elkins, tbe local agent of tbe appellants, to ascertain the names of tbe companies issuing tbe policies, in order to determine whether they bad made an adjustment, and witness was advised by Elkins that tbe policies bad been assigned.

' Chas. I. Evans testified that be was an attorney at law at Booneville, Arkansas, and that be bad a conversation with Myers a few days after tbe assignment of tbe policies to tbe appellees. Myers claimed to be representing tbe Vitograph Inc., and stated that be was going to garnish the insurance money belonging to Donotban. Witness told Myers that the policies had been assigned to the appellees.

It was shown by the cashiers of the respective appellees that they paid Donothan a valuable consideration for the assignment of the policies. Donothan testified that he.was a resident of Booneville, Arkansas, at the time the suit was instituted against him in Oklahoma by the Yitograph Inc. Company, and he was notified of the pendency of that suit. At that time he didn’t have any property in the State of Oklahoma.

The causes were consolidated and tried upon the above facts, before the court sitting as a jury. The court-rendered a judgment in favor of the appellees against the appellants amounting in the aggregate to the sum .of . $1,038.15', from which judgment is this appeal.

1. The appellees contend, as stated by their learned 'counsel, that they had the right to maintain their suits in the Arkansas court, upon Arkansas contracts, by which contracts the appellants in this case had promised to pay'the banks the amount sued for; that these suits are simply suits on contracts between the appellants and the appellees, by which the appellants are liable to the appellees, regardless of the prior garnishment proceedings and judgment thereon against them in the Oklahoma court. This contention of learned counsel for the appellees is unsound, and cannot be sustained, for the reason that, after the loss on the policies occurred, the appellants merely assented to the assignment of those policies by Donothan, the insured, to the appellee. No consideration moved from the appellees to the appellants for such an assignment, and there was no contract between the appellees and the appellants by which the latter, for a valuable consideration, agreed to pay the loss that had accrued under the policies to the appellees. The contract of assignment was after the loss had accrued, and was between the appellees and the insured, Donothan. The effect of the assignment after the loss had occurred and the proof and adjustment thereof, was to transfer Donothan’s cause of action and rights under the policies to the appellees. The assignment simply placed appellees in Donothan’s shoes — it did not vest the appellees with any other or greater rights under the policies against the appellants than Donothan himself would have had.

Appellees’ pleadings show that their right of action as assignees against the appellants was predicated on the policies or contracts of insurance between their assignor, Donothan, and the appellants, and not on any separate contract between the appellees and the appellants, for, as we have stated, there was none, and could not have been any by the mere assent to the assignment after the loss had accrued.

2. The next question is, did the action instituted by the Yitograph Company against Donothan on the 12th of February, 1923, and the issuance and service of writs of garnishment in that action against the appellants in the district court of Oklahoma, and the interpleading by the appellants of the appellees, give the Oklahoma district court jurisdiction to render the judgment therein against tbe appellee's? The statutes of Oklahoma give any creditor the right to proceed by garnishment against any person who shall be indebted to, or have any property, real or personal, in his possession or under his control belonging to such creditors, and, on service being had as provided in the statute, to enter and collect judgment against the garnishee as in attachment and garnishment proceedings. Sections 353-356, c. 3, art. 9, Compiled Statutes Oklahoma, 1921.

Section 366 gives the garnishee the right to inter-plead any other person than the defendant who claims the indebtedness on the property in' the garnishee’s hands, by disclosing in its answer the name and residence of sucb claimant, and gives the garnishee the right to make sucb claimant a party defendant to the action and to have him served with process, and, after such service, the garnishee may pay or deliver the indebtedness or property into court and be discharged from all liability for the amount paid or property so delivered. Under this statute, upon service being had upon the party interpleaded, such party shall be deemed a defendant to the garnishee action, and is required to file an answer within twenty days, setting forth his claim or any defense which the garnishee might have made, and, in case of default, judgment may be rendered which shall conclude any claim upon the part of such defendant. It thus appears that, under the laws of Oklahoma, the Vitograph Company had the right to institute this action in the district court of Oklahoma against Donothan, its debtor, and to garnish the appellants; and also that the appellants, as garnishee's, in their answer had the right to disclose that the appellees were claiming the indebtedness, and to have them inter-pleaded and made parties defendant in the district court of Oklahoma. All this was done, as the undisputed facts above set forth show, before the appellees instituted this action in the Logan Circuit Court against the appellants to recover on the policies.

The Oklahoma statutory law on garnishment is in conformity with the law that obtains in our own and other State jurisdictions, and also as laid down by the Supreme Court of the United States. In Kansas City, etc., Ry. Co. v. Parker, 69 Ark. 401, it is said that “a situs of a debt for purposes of garnishment is not only at the domicile of the debtor, but in any State in which the garnishee may be found, provided the law of that State permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance or actual service of process upon him within the State.” Stone v. Brake, 79 Ark. 384; Person v. Williams-Echols Dry Goods Co. 113 Ark. 467; Chicago, R. I. & P. Ry. Co. v. Sturm. 174 U. S. 710.

In Chicago, Rock Island Ry. Co. v. Sturm, supra, it is held: “The situs of the property in a debt can be changed only by the change of location of the creditor who is the owner thereof, or with his consent. * * * All debts are payable everywhere, unless there be some special limitation or provision in respect to the payment; the rule being that debts as such have no locus or situs, but accompany the creditor everywhere, and authorize a demand upon the debtor everywhere. ’ ’ And in Harris v. Balk, 198 U. S. 215, it is held, quoting syllabus: “Attachment is the creature of the local law, and power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues.”

But learned counsel for the appellees'say “the undisputed proof in the case shows that there was no res of Donothan within the jurisdiction of the Oklahoma court, and that Donothan was not within the jurisdiction of such court.” They contend that, inasmuch as Donothan had assigned the policies to the appellees, there was no longer any property in the State of Oklahoma belonging to Donothan and subject to the process of garnishment. The fallacy of this contention and argument is in the premise upon which it is predicated. The premise is unsound because it assumes that the amount of the debt due by the appellants on the policies of insurance was not the res, that is, property of Donothan in Oklahoma, subject to garnishment because of the assignment of the policies to the appellees. "Whereas the debt or amount due under the policies is the res, and, under the Oklahoma statutes and decisions, as well as our own, and the decisions of the Supreme Court of the United States, such debt was subject to the process of garnishment issued out of the Oklahoma court. As is said by the Supreme Court of the United States in Chicago, R. I. & P. Ry. Co. v. Sturm, supra, “The essential service of foreign attachment laws is to reach and arrest the payment of what is due and might be paid to a nonresident to the defeat of his creditors. To do it he must go to the- domicile of his debtor, and can only do it under the laws and procedure in force there. This is a legal necessity, and considerations of situs are somewhat artificial. If not artificial, whatever of substance there is must be with the debtor. He, and he only, has something in his hands. That something is the res, and gives character to the action as one in the nature of a proceeding in rem. To ignore this is to give immunity to debts owed to nonresidents creditors from attachments by their creditors, and to deny necessary remedies. A debt may be as valuable as tangible things. * * * Of course, the debt is the property of the creditor, and, because it is, the law seeks to subject it, as it does other property, to the payment of his creditors.”

Service was had upon Donothan, the nonresident of Oklahoma, under the garnishment law of that State, and also upon the appellants, as garnishees. This gave the Oklahoma court jurisdiction of the parties and of the res, or proceeds of the policies in the hands of the appellants, as between the Vitograph company, Donothan, and the appellants. The answer of the appellants in that suit and the service of process upon the appellee by which they were interpleaded and made parties defendant under the Oklahoma statutes, also gave the Oklahoma court jurisdiction to dispose of the whole matter as between the appellees and the other parties to the Oklahoma action, provided there was no collusion or fraud upon the part of the appellants and the Vitograph company by which the appellants, in their answer, failed to make a true statement of the facts and a full disclosure of the rights of the appellees as assignees of the policies; The testimony does not disclose any collusion between the appellants and the Vitograph company to defraud the appellees in any way. The Vitograph company had the right to select the forum for instituting its action against Donothan, and is not to be criticized or censured because it selected the forum most convenient to it, and where it could garnish the proceeds of the policies in the hands of the appellants. The answer of the appellants in the garnishment was a complete disclosure of all the rights of the appellees under the assignment of the policies, and appellants pursued to the letter the Oklahoma statute in giving appellees notice of the garnishment and praying that they be interpleaded and made parties defendant. There was, in short, no failure or negligence on the part of the appellants to perform their duty to the appellees. Appellants notified appellees of the garnishment, and set forth in their answer every fact concerning the right of appellees as assignees of the policies.

The case therefore differs vitally in this respect from the case of St. Louis & S. F. R. Co. v. Crews, 151 Pac. (Okla.) 879, upon which the appellees rely. Here every defensive matter was set np by the appellants in their answer to the garnishment that conld be set np to protect the rights of the appellee, which was not the case in Ry. v. Crews. The present action is likewise clearly differentiated on the facts from the case of Detroit Fire & Marine Ins. Co. v. Stewart, 123 Ark. 42, upon which the appellees rely. It would unduly extend this opinion to set forth and discuss the facts in detail. Suffice it to say, the garnishee in that case did not make a full disclosure of the facts so as to protect the rights of strangers to the garnishment proceedings,' and we held that the garnishees could not avail themselves of a judgment rendered against them as against the rights of third parties whose rights they did not disclose. In that case, among other things, we said: “It is the duty of the garnishee to make a full disclosure. of the facts, and, in the absence of such disclosure, it cannot plead the judgment in the garnishment proceedings as a'defense to a suit of a third person. * * * Defendant has not shown that it pleaded the facts in the garnishment proceedings, or even that it gave interested parties actual notice of the pendency of the proceedings, therefore it is no+ entitled fo plead the Texas judgment, for that reason, if no other.”

But here the appellants, as garnishees,- as we have, stated, fully set forth in their answer all the facts in the garnishment-action in the Oklahoma court affecting the appellees, and gave them notice of the pendency of that action, and had them interpleaded and brought into that action, so that appellees might protect their rights as assignees of the policies. In ignoring this action of the Oklahoma court, and in failing to appear there and set up their rights as the assignees of the policies; the appellees made their fatal mistake. The Oklahoma court had acquired jurisdiction of the parties and subject-matter before the appellees instituted their present action in the Logan Circuit Court. In addition to the authorities 'already cited, see St. Louis S. W. Ry. Co. v. Vanderburg, 91 Ark. 252; Citizens’ Bank v. Rudyard, 152 N. W. 1077; Stelzer v. Ry., 134 N. W. 573.

3. The judgment of the Oklahoma district court against the appellees, being in all things regular, is entitled to full faith.and credit in this action. St. Louis S. W. Ry. Co. v. Vanderburg, supra; Davis v. Patterson, 137 Ark. 187; Shaw v. Polk, 152 Ark. 18; State ex rel. Craighead County v. St. Louis, etc. Ry. Co., 162 Ark. 443; Howard-Sevier Road Imp. Dist. v. Hunt, ante p. 62. Appellees are bound by that judgment, and it is a bar to the maintenance of their action against the appellants to the extent of the Oklahoma judgment rendered in favor of the Yitograph company against the appellants. In addition to the authorities cited, see also B. & O. Ry. Co. v. Hostetter, 240 U. S. 620; Stelzer v. Ry. Co., 134 N. W. 573; Rothschild v. Burton, 25 N. W. 49, and other authorities to this point cited in appellants’ brief.

4. The appellants tendered to the appellees the balance due on the policies over and above- the Oklahoma judgment, together with costs, which the appellees refused to accept. It follows, from what we have already said, that the appellees were not entitled to any greater amount than the sum tendered. For the errors indicated the .judgment is reversed, and the cause will be remanded with directions to the trial court to enter a judgment in favor of the appellees against the appellants in the sum of $274.13, and the costs that had accrued up to the time of the tender.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Parks v. Murphy.
    Opinion delivered December 1, 1924.
    1. Limitation op actions — contingent claims against decedent’s estate. — Under a duebill for a half interest in a party wall, “to be paid when built on lot,” the creditor could not prove his claim against the deceased debtor’s estate, and hence limitations could not run against a suit in’equity against his devisees to subject land of the estate to payment of the duebill, until a building was constructed on .the lot by the debtor’s grantee.
    2. Executors and administrators — contingent claims. — So long as it remains uncertain whether a contract will ever give rise to actual liability, the contract is not provable against the estate of the contracting party.
    3. Party walls — assertion op rights — laches.—A creditor, suing his debtor’s devisees to subject lands of the estate to payment of the amount agreed to be paid for a party wall when a building should be constructed thereon, within 10 months after construction thereof by decedent’s grantee and less than seven years after decedent’s death, held not guilty of laches in asserting her rights.
    4. Equity — jurisdiction.—Equity has jurisdiction of a suit against heirs or devisees who have received a debtor’s estate to enforce' a contingent claim arising after the time for probating it had passed.
    '5. Appeal and error — appeals in chancery triable de novo — Appeals from the chancery court to the Supreme Court are triable de novo, without the taking of exceptions to rulings or the final decree.
    Appeal from Logan -Chancery Court, Southern District; J. V. Bourlcmd, Chancellor;
    reversed.
    STATEMENT OE EACTS.
    This was a suit brought in equity by a creditor of a decedent against his devisees to subject the lands and town lots belonging to his estate to the payment of her debt. The basis of the suit is a duebill which reads as follows:
    “Booneville, Arkansas, November 6, 1913.
    “Due W. L. Shamblee one hundred and eighty-three dollars for one-half interest in brick and rock wall on line lot No. 3 and 4, in block 23, on Broadway Street, in town of Booneville, Arkansas, according to C. O. Gr. plat. This to -be paid' when bnilt on lot. Gr. J. Murphy.”
    On the 2d day of May, 1915, W. L. Shamblee died, owning the lot described in the duebill, and the lot and the duebill were set apart to appellant as her part of his estate. In the months of May and June, 1913, W. L. Shamblee constructed a brick building on said lot. G. J. Murphy was the owner of the adjoining lot. By an agreement between Shamblee and Murphy, Shamblee constructed the north wall of the building on his lot so that half of it rested on the lot of Murphy. The duebill was executed by Murphy to Shamlee as payment for his interest in said party wall.
    D. N. Guinn, by mesne conveyances, became the owner of the Murphy lot, and constructed a building on it in June, 1922. On the 9th day of June, 1917, G. J. Murphy died, and his widow and son and daughter were the sole devisees under his last will and testament, and are the appellees herein. As such devisees they are now the owners of and in possession of certain lands and town lots belonging to the said estate, of the value of more than $20,000. There was no administration upon the estate of G. J. Murphy, and the devisees took possession of his property under the terms of the will. No part of said duebill has ever been paid.
    The above were substantially the allegations in the complaint by appellant, who was the plaintiff in the court below, and judgment is prayed for against appellees in the sum of $183, with the accrued interest, and that the same be declared a lien upon the land and town lots belonging to the estate of G. J. Murphy, deceased, which are specifically described in the complaint.
    Appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and appellant declined to plead further. It was therefore decreed that appellant take nothing by her complaint. The case is here on appeal.

      Kincannon & Kincaqmon, for appellant.
    Appellees, as devises under the will of Gr. J. Murphy, took the property subject to the appellant’s rights as creditors. C. & M. Dig., 152 and 3471; 40 Ark. 102; 42 Ark. 22; 47 Ark. 222; 48 Ark. 230. The statute in relation to presentation of claims, C. & M. Dig., § 97, does not contemplate inchoate or contingent claims, such as the claim here, where it did not accrue until the building was constructed. 14 Ark. 246, 18 Cyc. 419'; 99 Ark. 527; 153 A\rk. 335; 80 Ark. 103. Equity is the proper forum in which to proceed for satisfaction of the ■creditor’s claim against the heir who has received his ancestor’s estate. 31 Ark. 229; 15 Ark. 412; 18 Ark. 118; 14 Ark. 246. The property went into the hands of the devisees under the will, charged with an equitable lien in favor of appellant superior to that of the defendants, and this was a matter peculiarly within the jurisdiction of chancery. 40 Ark. 433; 74 Ark. 520.

      John P. Roberts and Evans & Evans, for appellees.
    1. Appellant. did not reserve any exception to the action of the trial court in sustaining the demurrer, nor in entering the final judgment' against her. There is therefore nothing before this court to be reviewed. '26 Ark; 16; 73 Ark. 407; 94 Ark. 254; 21 Ark. 286; Id. 398; 25 Ark. 380; 45 Ark. 609; Id. 392; 123 Ark. 548.
    2. The demurrer was properly sustained, for the reason that the plaintiff, if she had a cause of action at all, should have invoked the jurisdiction of the probate court. Article 7, § 34, Constitution; C. & M. Dig., § 2256. There is no fraud, error or mistake alleged, and nothing set forth in the complaint which prevented or hindered the plaintiff, if a creditor of Murphy, from collecting her claim through the probate court. 48 Ark. 547; 49 Ark. 55, 56; 51 Ark. 366; 47 Ark. 242; 90 Ark. 444; C. & M. Dig., § 97. If, as contended by appellant, the claim did not mature until June, 1922, and there was no administration upon the Murphy estate, there is no reason why appellant could not have applied in June, 1922, to the probate court for the appointment of an administrator, and had the question settled by that' court as to whether or not the estate owed the appellant. 14 Ark. 246. The complaint takes no account of the personal property of the estate, yet such property is primarily liable for the payment of debts, whether due at the time letters of administration are issued, or are inchoate and contingent and come into existence after-wards. 18 Ark. 334; 94 Ark. 60; 54 Ark. 33; 40 Ark. 433.
   Hart, J.,

(after stating the facts). This court has held that the defense of the statute of limitations may be interposed in equity by demurrer where the cause of action appears upon the face of the complaint to be barred, and1 does not disclose facts sufficient to remove such bar. Flanagan v. Ray, 149 Ark. 411, and cases cited.

Hence counsel for appellees seek to uphold the decree upon the theory that appellant is not.entitled to maintain this suit in equity. The complaint alleges that no administration was had upon the estate of G. J. Murphy, deceased, and that, upon the failure of the devisees named in the will to probate it, it became the duty of the appellant, as a creditor of the estate, to take out letters of administration with the will annexed, and probate her claim.

In answer to this contention, it need only be said that the claim of appellant was a contingent one, and could not have been probated until it became an absolute claim by the construction of the building by Guinn, the grantee of G. J. Murphy, in 1922. By the terms of the duebill Murphy was not to pay for his interest in the party wall until the building was constructed on his lot whereby the party wall was used.

In Bank of Hoxie v. Meriwether, ante p. 39, it was held that agreements of the sort in question in- this case'creáte a covenant running with the land, and that a charge is created in the nature of an equitable lien upon the lot upon which the wall was erected, . which is enforceable in equity against the grantee -of the contracting party when a building is constructed under the terms of the agreement.' The fact that the agreement of Murphy to pay Ms part of the construction of the party wall when a building was erected on his lot, constituted a covenant running -with the land1,' so that there existed1 an equitable lien against his grantee, is entirely independent of the liability of Murphy. Murphy became liable because he bound himself, by his contract, to pay for the party wall when a building was constructed upon his lot.

The fact that the agreement constituted a covenant running with the land shows that the claim of Shamblee against Murphy was a contingent one. Under the terms of the agreement Murphy was not to pay his part of the cost of the construction of the party wall until a building was erected on his lot. His contract created a debt payable only in the future, upon a contingency, and that was that he or his grantee should construct a building upon his lot, and thereby make use of the party wall. Hence Shamblee only had a contingent claim against the estate. Under the agreement, the construction of the building would make what was before a contingent claim an absolute one. Such act would fix the time of payment and thereby make the liability absolute. Hence if letters of administration had been taken out, appellant, as successor to the rights of Shamblee, could not have proved his claim against the estate of G. J. Murphy until after Guinn had constructed the building on the lot, in June, 1922.

• So long as it remains uncertain whether a contract will ever give rise to an actual liability, and there is no means of removing the uncertainty by calculation, such contract is not provable as a debt against the estate of the contracting party. Walker v. Byers, 14 Ark. 246; Burton’s Admr. v. Lockert’s Ex’ors., 9 Ark. 411; and Evans v. Hoyt, 153 Ark. 334.

As we have already seen, Guinn did not construct the building on the lot until June, 1922. The present suit was commenced on the 15th dav of May,.1923. G. J. Murphy died on June 9, 1917. Thus it will be seen that appellant brought her action within ten months after it accrued and within less than seven years after Murphy died. Hence it cannot he said that she was guilty of laches in asserting her rights.

Another objection is that equity was not the proper forum in which to bring the suit. We cannot agree with counsel in this contention. The right of a creditor to proceed in equity against the heirs or devisees of a decedent who have received his estate, for a satisfaction of his claim, after the time limited for'probating it, is well settled in this State. Hall v. Breiver, 40 Ark. 433, and Wallace v. Swepston, 74 Ark. 520.

No exceptions were taken to the decree in the chancery court, and appellees insist that, without such excep.tion, no objection can be properly raised to it in this court. The rules of chancery practice do not require that exceptions should be taken to the various rulings of the court made in the progress of the cause, or to the final decree itself. The entire proceedings are matters of record, and appeals from the chancery court to this court are tried de novo without the taking of technical exceptions. Lemay v. Johnson, 35 Ark. 225; Western Coal & Mining Co. v. Hollenbeck, 72 Ark. 44; and Fletcher v. Simpson, 144 Ark. 436. To the same effect see 3 C. J., par. 808, p. 908.

The result of our views is that the decree will be reversed, and the cause remanded with directions to overrule the demurrer and to enter a decree in accordance with this opinion.


author: Smith, J.

text:
    Wimberley Grocery Company v. Border City Broom Company.
    Opinion delivered December 15, 1924.
    1. Assignments — issues and proof. — In an action by an assignee of an account for goods sold against the debtor, who had paid the account to the assignor after notice of the assignment, testimony to the effect that the assignee had assumed the obligations of the assignor was incompetent where the answer did not allege such defense.
    2. Assignments — defense.—In an .action on an account by an assignee against the debtor, where the debtor paid the assignor after notice of assignment of the account, the fact that credit was not to he given the account of the assignor by the assignee until the account against the debtor was collected by the assignee did not affect the validity of the assignment.
    3. Assignments — evidence.—In an action by an assignee of an account against the debtor, evidence that the assignee knew of the payment of the account by the debtor to the assignor was inadmissible where the witness did not state when the assignee learned that fact.
    4. Assignments — evidence.—Where a debtor paid to the assignor, after notice of assignment to plaintiff, evidence that part of the amount paid to the assignor was remitted to the assignee was irrelevant where the amount remitted and the account on which it was paid were not stated.
    5. Customs and usages — issues, proof and variance. — The contention of a debtor, who had paid an account to an assignor after . notice of assignment of the account, that there was a trade custom between the assignor and assignee, whereby the former collected assigned accounts and remitted to the latter will not be considered in an action by the assignee against the debtor where it was not pleaded in the answer.
    6. Assignments — sufficiency.—Where an invoice off a shipment contained a notation that it was payable to the plaintiff as ■assignee of the account, this was sufficient to vest the property in the plaintiff, and subsequent payment to the assignor was at the debtor’s peril.
    Appeal from' Craighead Circuit Court, Jonesboro District; G. E. Keck, Judge;
    affirmed.

      A. P. Patton, for appellant.
    The court erred in holding that there was an assignment of the contract. 5 Corpus Juris 912, § 79; 14 Wall. 69; 20 U. S. (L. ed.) 762;-65 N. W. 501. The testimony of Carson should have been submitted to the jury. 5 Corpus Juris, p. 966, § 152. The court erred' in instructing a verdict in favor of appellee. Ray v. Arkansas Fertiliser Go., 162 Ark. 508.

      F. L. Westbrook and Rassieur & Long, for appellee.
    An unqualified' assignment of a chose in action vests in the assignee the title thereto held by the assignor. 5 C. J. 958. No particular mode or form is necessary to effect a valid assignment. 35 Fed. 440; 29 S. E. 44; 40' L. R. A. 244; 5 Ark. 536; 5 C. J. 897. The suit was properly brought. 151 Ark. 207; 47 Ark. 541.
   Smith, J.

A copartnership doing business under the firm name of the Border City Broom Company of Fort 'Smith, hereinafter referred to as the Fort Smith company, brought suit for the benefit of the Boggs Broom-corn Company, of St. Louis, hereinafter referred to as the 'St. Louis company, against the Wimberley Grocer Company, a corporation engaged in business in Jonesboro, hereinafter referred to as the grocer company, and at the trial the following facts were developed:

The Fort Smith company sold the grocer company a carload of brooms, for which an invoice was rendered October 20, 1921. The invoice price of the brooms was $2,495.50, but there were certain discounts and credits, which reduced the bill to $2,058.77, and judgment was prayed for that amount. The invoice contained this notation: “This invoice payable to the Boggs Broomcorn Company, St. Louis, Mo.” Mr. Wimberley, the president of the grocer company, admitted that he saw this notation on the invoice when it was received.

On November 11, 1921, the St. Louis company wrote the grocer company that the invoice had been assigned to and was payable to it, and the letter concluded with this inquiry: “For our information kindly advise us when we may expect payment of this invoice.” The grocer company replied to this letter under date of November 15, and in this letter stated: “Beg to advise that avo expect to mail check about the 20th.”

. On October 28, 1921, the grocer company bought more brooms from the Fort Smith company, the invoice price of which was $186.87, and this invoice included the former bill, making- a total of $2,245.54, and contained no notation that the bill was to be paid to the St. Louis company.

■Certain credits were claimed by the grocer company on the first invoice, in addition to those noted there, and these were conceded by the Fort Smith company, and, on November 7, that company wired the grocer company as follows: “We will allow deduction as shown by your-invoice to us. Remit to St. Louis as per our notation on invoice.”

On November 29,1921, the Fort Smith company wired the grocer company the following inquiry: “Please advise when you sent draft covering invoice sent you.”

On December 3,1921, the Fort -Smith company wired the grocer company as follows: “Have not received check which you stated you would send. Please have your bank wire City National Bank of this city that they will honor our draft for the full amount of our invoices, less your charges. Please state this amount in the telegram. This is very important.”

In response to this telegram the grocer company remitted to the Fort Smith Company the amount of both invoices, less the total amount of all credits claimed.

Nothing further appears to have been done about the matter until June 20, 1922, when the St. Louis company wrote the grocer company reminding the latter of the promise contained in the letter of the latter to remit on or about November 20. This letter was answered by a letter from the attorney of the grocer company, advising that, at the direction of the Fort Smith company, remittance had been made to that company, thereby paying the bill. This letter denied liability, and declined to 'pay the bill a second time.

Thereafter this suit was commenced, and the complaint set out the above'correspondence, both by telegraph and toy letter, as the basis of the suit, and judgment was prayed for the original amount of the first invoice.

The grocer company answered and admitted the purchase of the brooms and the correspondence in regard thereto, but denied that the invoice had been assigned to the St. Louis company or that it had knowledge of its assignment. The answer further alleged that, at the request and insistence of the Fort Smith company, remittance had been made to that company in full payment of the bill. Upon these allegations the grocer company denied liability to the St. Louis company, and filed a counterclaim against the Fort Smith company in the following language: “For its counterclaim herein against Border City Broom Company and its individual copartners mentioned in the caption hereof and of the complaint herein, this defendant, in addition to all of the allegations and admissions hereinbefore made, says that the amount of said invoice was paid to the said Border City Broom Company at its special instance and request, and that if plaintiff, Boggs Broomcorn Company, recover against this defendant, then that it should have judgment against said 'Border City Broom Company.”

The answer concluded with a prayer that the grocer company be discharged with its costs, tout that, if the St. Louis Company recovered judgment against it, it have judgment over against the Fort Smith company.

The deposition of C. B. Carson was taken on interrogatories. This witness was one of the partners composing the Fort Smith company, and was its manager. After certain preliminary questions, he was asked if his company had requested the grocer company to forward draft to it covering tooth invoices, and he answered: “A. We did, with the intention of sending Boggs’ part to them and keeping the smaller invoice, which was not assigned to them, for ourselves.”

Interrogatories 6, 7, 8, 9 and 10 propounded to the witness Carson were excluded by the court, on motion of the plaintiff, for the reason that they were not relevant to any issue raised by the pleadings, and this action is assigned as error.

The answers elicited by these interrogatories were to ■ the following effect: The Fort Smith company was heavily indebted to the St. Louis company, and the proceeds of the assigned invoice were to apply .on account. Part of the proceeds of the grocer company’s draft paying the invoice were used for the Fort Smith company’s payroll. Part was either paid to the St. Louis company or applied on an acceptance due that company. Being asked what part of the proceeds of the grocer company draft the St. Louis company had received, the witness' answered that he could not remember, as the transaction was two years old. Being asked if the 'St. Louis company was advised of this transaction and if it had been handled in accordance with its wishes, and whether any complaint had been made about the transaction • prior to June 15, 1922, at which time witness severed his connection with the Fort Smith company, the witness- answered: “A. .They knew we received this check and that, we used a part for payroll, and the balance was applied either on an acceptance or paid direct to them.”

Interrogatory 9 reads as follows: “State if there was an assignment by the Border City Broom Company to the Boggs Broomcorn Company of St. Louis on or about the 15th day of April, 1922.” The witness answered: “A. There was.”

Interrogatory 10 is as follows: “State if there has recently 'been an instrument signed by the Boggs Broom-corn Company releasing the Border Citv Broom Company from any and all further known liability "with reference to any claim it might have against said company or any member of the partnership composing the Border City Broom Company. ■ If you state that such an instrument has been executed, will you please attach copy of same as an exhibit to your deposition. ’ ’ To this the witness answered: “A. There was an instrument 'signed which released the partners from any further liability from the debts of the Border City Broom Company, Boggs agreeing to pay all indebtedness which had shown up at that time., I do not have this -with me, but same may be procured from W. B. Booxie at Fort Smith, Arkansas.”

The witness did not attach the assignment referred to by him as an exhibit, as he was directed to do, and we know nothing about its provisions, except the statement contained in the answer of the witness.

We think the court did not err by striking out these interrogatories and the answers thereto. They were not responsive to any defense set up in the answer. The. answer did not allege that the St. Louis company had assumed the obligations of the Fort Smith company, and there was no request- for permission to so amend the answer as to make this alleg-ation. If this testimony had .been admitted without objection, the answer might have 'been treated as amended to conform thereto, but objection was made to the testimony, the objection being that it was irrelevant, and there was no amendment of the answer making the testimony relevant.

Moreover, the witness makes plain a fact — which is otherwise perfectly clear— that the invoice was assigned, ' and that this was done at the time of the sale. True, he says credit was not to be given the account of the Fort Smith company until the invoice was paid, but that fact did not affect the validity of the assignment, as the assignment was for the purpose of collecting the invoice, at which time credit would have been given.

The witness stated that the St. Louis company knew the Fort Smith company had received the check, but he does not say when this information was acquired. .He was being asked about complaint being made by the St. Louis company prior to Jnne 15, 1922, which was, of course, long after the happening of the events out of which this litigation arose; nor did the witness state what part of the grocer -company’s draft was used to meet the payroll, nor on what account the acceptance was applied, nor whether all of the balance was paid on the acceptance, or, if the balance was paid to the St. Louis company, on what account it was paid.

The witness did not produce the assignment referred to by him as requested, and we do not know what obligations were included in it — what the known liabilities were to which the witness referred, and the burden of proving all this rested on the grocer company, even though this defense had been alleged.

It is insisted that there was a trade custom between the Fort Smith company and the St. Louis company whereby the former collected assigned invoices and remitted proceeds thereof to apply on account. But the answer set up no such defense, and we 'do not think the testimony established any such custom, even though it had been alleged.

In explanation of the letter from the grocer company under date of November 15, Wimberley testified that he did not intend by that letter to promise payment to the St. Louis company, but only intended to say that he would pay the invoice, and that he did pay it a few day's later than he promised. In view of the inquiry of the St. Louis company in its letter under date of November 11, we do not think the reply of the grocer company is susceptible of any other construction than a promise to pay the St. Louis company within the time stated.

It is the insistence of the St. Louis company that the remittance was .made to the Fort Smith company because that company had agreed to allow certain additional credits not shown on the original invoice. We do not consider that question, because a verdict was directed by the court in its favor. However, the verdict was directed for only the balance admitted to be due after all credits claimed by the grocer company had been allowed, and the St. Louis company has not cross-appealed.

The request for judgment over against the Fort Smith company appears to have been overlooked at the trial, or to have been considered as unimportant; at least the failure to render such judgment is not assigned as error in the motion for a new trial.

The undisputed testimony shows that there was an assignment of the invoice. This fact appears from tho recital on the face of the invoice itself, which Wimberley admits having seen upon its receipt.

At § 73 of the chapter on Assignments, in 5 C. J., p. 906, it is said: “Where the assignment is in writing, no special form of words or language is required to be used, although the operative words of an assignment generally used are ‘sell, assign, and transfer,’ or ‘sell, assign, and set over.’ It may be in the form of an order on the debtor or holder of the fund assigned to pay the debt or fund to another person. Any language, however informal, if it shows the intention of the owner of the. chose in action to transfer it, will be sufficient to vest the property therein in the assignee. Of course, any statutory requirements as to the form of .an assignment must be observed.”

The correspondence and the telegrams show the assignment beyond question, and we think the grocer company’s letter was an unequivocal promise to pay the invoice, and the grocer company was fully advised of this assignment when it made payment" to the Fort Smith company.

“But payment to the assignor, or discharge or release by him after notice to the debtor of the assignment, is no defense to the claim of the assignee; nor may the debtor, after receiving such notice, acquire new obligations of the assignor and offset them to the prejudice of the assignee.” Section 148, chapter on Assignments in 5 C. J., p. 960. State v. Jennings, 10 Ark. 428.

There was no testimony that the invoice was reassigned, or that authority was conferred on the Fort-Smith company to collect it, and it is not contended that the St. Louis company had any knowledge of the corresnondence passing between the grocer company an 1 the Fort Smith company about the first of December which induced the grocer company to remit to the Fort Smith company, and it is not contended that the grocer company advised the St. Louis company that it had been directed to remit to the Fort Smith company, and the remittance was made without advising the St. Louis company that this would be done.

Under these circumstances the grocer company paid the invoice to the Fort Smith company at its peril, and the judgment was properly directed for the plaintiff. Judgment affirmed.


author: McCulloch, C. J.

text:
    Chaffin v. Harpham.
    Opinion delivered December 15, 1924.
    1. Escrows — delivery irrevocable. — A delivery in escrow is irrevocable until failure to -perform the stipulated conditions.
    2, Injunction — prior assignment op oil and gas lease. — The assignee of an oil and gas lease, which had been previously 'assigned in escrow by his assignor to his co-defendants, was not entitled to specific performance of the contract of assignment to himself, or to restrain such co-defendants as prior assignees from carrying out the prior assignment, in ihe absence of proof that the prior assignment was unenforceable; plaintiff’s remedy being confined to recovery of damages against his assignor for'breach of contract.
    Appeal from Ouachita Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.

      T. J. Ga/u,gha/i%; J. T. Sifford, J. E. Gaughan, and Elbert Godwvii, for appellant.
    Injunction may issue to restrain the transference of property in violation of a contract to convey it to the one seeking the injunction so as to prevent a cloud being thrown on the title. 80 Yt. 48; 11 L. it. A. (N. S.) 1183; 87 Ark. 91. It is unlawful to take a lease or otherwise cloud the title to lands, tenements and leasehold interests therein. Acts 1923, act 159, p. 133. The defense of an innocent purchaser, or any other matter relied on in avoidance of a contract, and not in direct response thereto, must he specifically pleaded and proved by the party relying thereon. ' 30 Ark. 555. The alleged assignment presents every element necessary to enable plaintiffs to invoke specific performance. 16 Ark. 340; 19 Ark. 51; 30 Ark. 547.

      Mahony, Yocum & 8aye, for appellee.
    Equity will not decree specific performance where it is shown that there was a prior contract. 25 R. C. L. 245. There must he a mutuality of remedies. Courts will not decree specific performance of a contract involving performance of personal skill, such as to require a person t.o drill a well or develop a mine. 47 L. R. A. 334. If Evans could not have specific performance of the contract, neither could appellants. 79 Ark. 42; 132 Ark. 173; 149 Ark. 448; 4 Ark. 252; 19 Ark. 23.
   McCulloch, C. J.

Appellants allege that George H. Evans, one of the appellees, was, on February 16,1923, the owner of a gas and oil lease on certain land in Ouachita County, and on that date assigned the same to appellants for a consideration named in • the deed of assignment. They allege that the value of the lease is the sum of $20,000, and that Evans had, prior to the execution of the assignment to appellants, assigned the lease to appellees Harpham and Brannen and deposited the same with a certain bank in Little Rock under an escrow agreement. The prayer of the complaint was that appellees Evans, Harpham and Brannen be restrained from carrying out the former assignment, and that appellants have 'specific performance of their contract of assignment. The allegations with respect to the prior assignment to Harpham and Brannen are as follows:

“The defendant Geo. H. Evans had, prior to the execution of the assignment aforesaid to plaintiff, executed a certain assignment to his codefendants, A. C. Harpham and Walter Brannen, which assignment had been deposited with and left in the custody of the England National Bank of Little Rock, Arkansas, under an escrow agreement. But plaintiffs allege that it was distinctly understood and agreed in plaintiffs’ contract with the said Evans that, upon compliance with the terms of his contract, the said Harpham assignment would be withdrawn and the escrow agreement canceled with the defendant, England National Bank.”

■Subsequently, appellants amended their complaint’ so as to allege that, since the filing of the original complaint, the Vitek Oil & Refining Company has asserted claim to the premises involved in the controversy, that the agent of said company had entered upon said land and had drilled a well and was now in operation thereof. The prayer was. that the Vitek Oil & Refining Company and Paul Vitek, its- agent, be joined as defendants, which was done. There was a demurrer to the complaint, which the court sustained, and appellants declined to plead further. The complaint was dismissed, and an appeal has been prosecuted to this -court.

The only phase of the case which we deem it necessary to discuss is that paragraph which alleges that there was a prior assignment of the lease to Harpham and Brannen, which said lease was placed in escrow. There is nothing in the allegations to show that the delivery in escrow was revocable or that the delivery was on conditions which have not been performed, therefore the effect of this paragraph is to set forth a prior conveyance of the property in controversy to other parties — to other parties who are now sought to be restrained from operating under the lease. A delivery in escrow is irrevocable until failure to perform the stipulated conditions. Brown v. Allbright, 110 Ark. 394. In order for appellants to have stated a cause of action, it should have been shown that the prior lease was not enforceable by reason of failure - of the assignees to perform the conditions of delivery in escrow, or for some other reason. For aught to the contrary, so far as the allegations of the complaint go, the assignment to Harpham and Brannen and the delivery thereof in escrow was binding on Evans and beyond his power to revoke, therefore it was superior to the attempted assignment to appellants. With that state of facts, appellants were not entitled either to a specific performance of- the contract or to an injunction restraining the prior assignees, -and their remedy must be confined to the recovery of damages for breach of the contract of assignment.

Affirmed.


text:
    Sneed v. Reynolds.
    Opinion delivered December 15, 1924.
    1. Wills — necessity of date. — As the statutes require no date to a will, a date is not essential to a will, either one that is attested or one that is holographic in form.
    2. Wills — holographic will in form of letter. — That a holographic will was in the form of a letter to one of the beneficiaries did not render it void.
    3. Wills — admission of testimony of beneficiary. — Admission of testimony of the beneficiary under a holographic will as to its execution was not error; Crawford & Moses’ Dig., § 10529, applying only to beneficiaries who are also attesting witnesses.
    4. Wills — declarations of testatrix. — On the issue as to the mental capacity of the testatrix, it was admissible to prove her declarations of knowledge as to the result under the law if she should die without a will.
    5. Appeal and error — objection not raised below. — Objection to the competency of witnesses may not be raised for the first time on appeal.
    6. Wills — handwriting of testatrix — competency of witnesses. —Witnesses who showed familiarity with the handwriting of testatrix held qualified to testify on the issue whether a holographic will was in the handwriting of the testatrix, as required by Crawford & Moses’ Dig., § 10494, par. 5; the weight of their testimony being for the jury.
    7. Wills — undue influence — jury question. — The fact that the chief beneficiary of a will was the husband of testatrix, and was present in a conference with her, was not sufficient to justify submission of the issue of undue influence springing from fear, coercion or any other cause which deprives the testatrix of her free agency in the disposition of her property.
    8. Trial — instructions—general objection. — A general objection was insufficient to raise the question that an instruction ignored the issue of mental incapacity, especially where other instructions submitted that issue.
    9. Wills — holographic will — three unimpeachable witnesses. —Utnder Crawford & Moses’ Dig., § 10494, par. 5, requiring proof of a holographic will “by the unimpeachable evidence of at least three disinterested witnesses,” an instruction that such a will must be proved by at least three disinterested witnesses as to the handwriting of the body of the will and signature, and the proof of these witnesses must be sufficient to convince the jury that she actually wrote the will, independent of the evidence of any witnesses that they saw her write the will, held erroneous as excluding corroborative evidence which might aid the jury in reaching a conclusion as to whether the witnesses were unimpeachable and whether their testimony was sufficient to establish the will.
    Appeal from Garland Circuit Court;. Earl Witt, Judge;
    affirmed.

      Murphy é Wood and James E. Hogue, for appellant.
    A date is essential to the validity of a holographic will. Ill Ark. 54; Sehouler on Wills, vol. 1, § 429. Id. § 427, p. 501; Id. § 399; Alexander on Wills, vol. 1, § 40, p. 44. Id. § 464; 7 N. C. 134. Our statute does not require the dating of a holographic will, yet, where this is attempted and part of the date is printed and part in the handwriting of the testator, such a will should be held void. 40 Mont. 1017; 49 La. 868'.. Page on Wills, § 230, 27 S. E. 905. The instruction on the question-of undue influence should have been given. Physical force is not necessary to establish undue influence. Gardner on Wills, p. 176, note 21; 88 N. Y. 357; 106 Ala. 314. It is anything which tends to destroy free agency and constrains the testator to do what he otherwise would not do. 361 Fed. 333; 172 Ala. 295. Instruction No. 7 to the effect that the evidence of witnesses to the handwriting, in both the body of the will and signature, should1 be sufficient to convince that tiie decedent actually wrote the will, independent of the evidence of any witnesses to the effect that they saw the decedent write the will, is the law, and should have been given. 80 Ark. 204; 130 Ark. 394; 83 Ark. 495; 45 Ark. 524; 1 Ark. 201; 20 Ark. 410. The evidence of Mrs. Cohen was incompetent. 60 Ark. 301."

      Martin, W'ootton-S Martin, for appellee.
    Appellant’s contention that the will is void because part of the date is printed is not tenable. Our statute does not require a holographic will to be dated (C. & M. Dig. § 10, 494, par. 5.), and the cases cited by appellant from other States are decisions based on special statutes covering the subject. The date of the will is not part of the will itself. 5 Ind. 389; 79 Ky. 607; see also 125 Mich. 647. The question of undue influence was properly withdrawn from the jury, as there was no evidence to substantiate it, as laid down in the following cases: 154 Ark. 516; 87 Ark. 148; 49 Ark. 367; 120 Ark. 407; 93 Ark. 66; 127 Ark. 68; 29 Ark. 151; 103 Ark. 236.
   McCulloch, C. J.

This appeal involves a contest of the last will and testament of Mrs. Maeda C. Reynolds, who was a resident of the city of Hot Springs, and died on April 10, 1923. The instrument in controversy was executed on February 24, 1923, and, being without attesting witnesses, it was offered for probate as a holographic will. Evidence was introduced tending to show that the entire body of the will and the signature thereto were written in the proper handwriting of the testatrix, as required by statute ('Crawford & Moses ’ Digest, § 10494, par. 5), and the verdict of the jury was in favor of upholding the will.

The instrument was written on the printed stationery of a certain hotel in Hot Springs, of which the coiitestee, Al A. Reynolds, was the manager, and where he and the testatrix resided at the time of the execution of the will and at the time of her death. The instrument is in the form of a letter addressed by the testatrix to the eontestee, her husband, and the printed heading on the stationery contained the name of the city, and following a blank space the figures 192. In the space between the name of the city and the figures mentioned above there was written ‘ Feb. 24, ’ ’ and the figure'. “ 3 ” was added in writing to the printed1 figures. The whole instrument is as follows:

“Hot Springs, Ark., Feb. 24, 1923.
“Mr. Al. A. Reynolds.
“Dear Husband: I realize that my condition is serious, and I want this letter .to be my last will and testament.
“I give and devise to my mother the following articles :
“My diamond and platinum bar pin.
“My diamond twin ring and one thousand dollars cash.
“To Dr. A. L. Sneed one thousand dollars in cash.
“To my aunt, Mrs. Ada K. Morrin, I give one thousand dollars in cash and mole and Kolinsky furs.
“I want you, my husband, to have everything else that I own at my death.
“I want you to be the executor of this, my will.
“Your loving wife,
“Maeda C. Reynolds."

Dr. Sneed, mentioned in the will, was the stepfather of the testatrix, and Mrs. Morrin was her aunt — her mother’s sister. Appellant, the mother of the testatrix, is the sole contestant.

It appears from the testimony that the contestee and the testatrix had been married about sixteen years. They had no children, and1 lived together in apartments at the hotel, of which the contestee was manager. Mrs. Reynolds became afflicted with cancer in the right breast, and in July, 1922, there was a serious operation performed by the removal of the right breast and adjacent glands. Physicians testified that the cancerous condition was very extensive, and that, after the operation, there was left an ulcerous wound, which continued up to the time of her death. A specialist from St. Louis examined Mrs. Reynolds at her room in Hot Springs on February 22, 1923, which was two d'ays before the execution of the will, for the purpose of determining whether or not she could be carried to St. Louis for another operation. The physician testified that he found Mrs. Reynolds much emaciated, and unable to walk; that the abdomen was tense, the liver enlarged, and lower extremities swollen below the knees, and that she was not in any condition to be removed to St. Louis for treatment, and that he considered her mental condition at that time such that she was not capable- of executing a will.

It is disclosed in the testimony that, the dav before the execution of the will, a lady friend of Mrs. Reynolds stated to her that she would only live a short time, and, on the morning on which the will was executed, Mrs. Reynolds spoke of this to her husband, and expressed a desire to make a will, and the will was then written in his presence. Appellee telephoned for another employee of the hotel, named Reynolds (not related to contestee), and he came up to the room, and the will was written in the presence of both of the men. According to the undisputed testimony, that of appellee himself and the other-witness, Reynolds, the entire body of the will and signature -were written by the testatrix, but she conferred with appellee during the preparation of the will, and called for suggestions from him. Both of these witnesses testified that, after witness Reynolds came into the room, Mrs. Reynolds asked contestee how to start the instrument, and he told her just to address it in the form of a letter to him and then write down the bequests she wished to make. They testified that Mrs. Reynolds slated first that she wanted1 her mother to have the ring and pin mentioned in the will and one thousand dollars in money, and that appellee replied “All right, just write that down.” She called over the other bequests that she wanted to make in the same way and received the same reply from her husband, to write it down the way that she wanted it.

There is a conflict in the testimony as to the physical and mental condition of Mrs. Reynolds at the time of the execution of the will. Numerous witnesses, including physicians who attended Mrs. Reynolds, testified that her mental condition was good up to the time of her death. It is conceded that her physical condition was poor on account of the serious operation and the result thereof, but witnesses introduced by the contestee testified that Mrs. Reynolds was up most of the time during the day, and was able to sit at the table and write. The evidence adduced on the part of appellant tended to show that Mrs. Reynolds’ physical condition was such that it was impossible for her to sit up or to do any writing at the time of the execution of the will. These conflicts in the testimonv were, of course, settled bv the verdict of the jurv, and there are no express statutory requirements with reference to a will of this character, except that it is essential that such an instrument shall be “established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting of each testator or testatrix. ’ ’

It is first insisted that the will is not valid for the reason that it is essential to the validity of such a will that it be dated, and that the date of this instrument is not entirely in the handwriting of the testatrix, being partly printed and partly written. It is provided by statute in some of the States that a holographic will must be written, dated and signed by the testator or testatrix, and in those States the decisions are that the dating of the will is essential; but our statute contains no such requirement with respect to the dating of a will, and the prevailing rule is that, in the absence of such a statutory requirement, a will, either one that is attested' or one that is holographic in form, need not be dated. This subject is fully discussed in the note to the ease of Dye v. Shutan. L. R. A. 1916E, 498. The rule there stated in the note is that, “while it is the custom to date mils, in the absence of a statute it is not necessary that the will should bear a date.” The question has not heretofore been presented to this'court, but we are clearly of the opinion that, under our statute, the prevailing rule should be applied, and that the absence of date is immaterial, even as to a holographic will. This being true, the entire date line may be discarded so as to leave the will withopt a date, and that does not affect the validity of the will. Ah imperfect dating is no dating at all, and, as it is not an essential part of the will, it may be disregarded, and tlie will be upheld,' if the body of the- will and the signature be proved,' in the manner required by statute, to be in .the handwriting of the testator or testatrix. We have often held that the form óf such a will is unimportant if there is compliance with the statutory requirement with regard to the body of the will and the signature being in the handwriting of the testatrix, and we have expressly held that an instrument in the form of a letter addressed to one or more'beneficiaries is sufficient compliance with the statute. Arendt v. Arendt, 80 Ark. 204; Mason v. Bowen, 122 Ark. 407; Murphy v. Murphy, 144 Ark. 429; Borchers v. Borchers, 145 Ark. 426; Musgrove v. Holt, 153 Ark. 356; Cartwright v. Cartwright, 158 Ark. 278.

It is next contended that the court erred in admitting the testimony of the eontestee, Reynolds, and also that of Mrs. Morrin, another one of the beneficiaries under the will. The contention is that they are incompetent as witnesses because of their interest in the result of the controversy, and that they should be excluded under the statute which provides that, if a subscribing witness to the execution of a will wherein a beneficial devise or legacy or interest is made to the witness, and ihe will cannot be proved without the testimony of such witness, the devise or legacy to that witness is void, and that such person shall be a competent witness and'may be compelled to testify respecting the execution of the will “in like manner as if no devise or bequest had been made to him.” Crawford & Moses’ Digest, 10529. This court has decided the question contrary to the contention of appellant, and we have held that this statute only applied to beneficiaries under the will who are attesting witnesses. Strickland v. Smith, 131 Ark. 350. There was no error in permitting* the witnesses to testify.

It is also contended that' the court erred in permitting a witness to testify concerning the declarations of the testatrix of her knowledge as to the result under the law if she should die without a will. This declaration was to the effect that her husband would get nothing*. The issue in the case was that of mental capacity or incapacity of the testatrix, and it was competent to prove her own declarations for the purpose of establishing her mental condition. Mason v. Bowen, supra.

Objection Is made to the testimony of two of the witnesses, 'Stanley Lee and E. N. Roth, on the ground that they showbd familiarity only with the signature of the testatrix and were therefore not competent to testify concerning the handwriting in the body of the will. There was no objection made to the testimony at the time it was offered. On the contrary, appellant’s counsel cross-examined the witnesses to a considerable extent for the-purpose of testing the accuracy of their knowledge concerning the handwriting of the testatrix. It is too late to object here for the first time to the competency of the witnesses, and we do not- understand that such is the objection made here now, but the contention is that the testimony was without probative force because of the lack of familiarity of the witnesses with the handwriting of the testatrix. The weight of the testimony was a question for the jury if the witnesses showed by their testimony sufficient familiarity with the handwriting of the testatrix to justify the court in permitting them to testify on the subject. Those witnesses testified that they had become familiar with the handwriting of Mrs. Reynolds in handling her checks on the bank. They testified that they had handled numerous checks and were particularly familiar with her signature, but their testimony was sufficient to warrant the belief that they were familiar with her handwriting other than her signature, and it was therefore proper for the court to- permit them to testify and let the jury determine what weight was to be given to the testimony.

The case was submitted to the jury on the issue of mental capacity of the testatrix. Appellant alleged undue influence, but the court refused to submit that issue, on the ground that there was no evidence in the record to justify, it.' We think the court was correct in its con-elusion, for we are unable to discover any testimony legally sufficient to justify a finding- of undue influence. This court has decided that, in testing the validity of a will, the influence which the law condemns as undue “is not the legitimate influence which springs from natural affection, but the malign influence which springs from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” McCulloch v. Campbell, 49 Ark. 367; Miller v. Carr, 94 Ark. 176; Milton v. Jeffers, 154 Ark. 516. All that is shown in the effort to establish undue influence is the relationship between the contestee and the testatrix as husband and wife, and the fact that he was present at the time of the execution of the will, and,' at her request, made suggestions concerning the form of the instrument. Nothing more was proved than that, and the same witnesses who testified to those facts testified that the testatrix acted freely, of her own accord, in framing the testament, and that she was of sound mind at the time. ■To permit the jury, under the facts established in the present case, to find that there was undue influence, would be to uphold a verdict upon a mere conjecture, or a bare inference of undue influence, from the fact alone that the chief beneficiary of the will was the husband o f the testatrix and that he was present in conference with the testatrix at the time of the execution of the will. If that be sufficient, it would be next to impossible for one of the spouses to mate bequests to the other without laying the transaction open to more than a mere suspicion of undue influence, and to permit a trial’ jury to infer from the relationship alone that there might have been undue influence. In order to submit that, as well as any other issue to the jury, there must be substantial evidence which would warrant the jury in drawing a reasonable inference that the will was executed under 'that “malign influence which springs from fear, coercion, or any other cause which deprives the testator of his free agency in •the disposition of his property.”

There are numerous other assignments of error with respect to the instructions given and refused.

The first instruction given by the court at the instance of the contestee is as follows:

“1. This is an action by Al A. Beynolds and others to establish a certain paper writing, introduced and read in evidence, as the last will and testament .of Meada C. Beynolds, deceased. If you believe from a fair preponderance of the evidence that the entire°body of the will, together with the signature of Meada C. Beynolds, was written by her in her own proper handwriting, and that this fact has been proven to your satisfaction by the unimpeachable evidence of at least three disinterested witnesses, then it would be your duty to find in favor of the will.”

It is contended that this instruction was erroneous in ignoring the issue of mental incapacity. There was no specific objection made to the instruction, and we are of the opinion that a general objection was insufficient to raise the question that it' ignored the issue of mental incapacity, which was fully submitted in other instructions. This instruction manifestly was intended to relate only to the issue in the' case as to the execution of the instrument, and, if it was thought that it excluded the other issue in the case, attention should have been called to the omission by a specific objection.

Instruction No. 7, which was requested by appellant and refused by the court, reads as follows:

‘ ‘ The court instructs the jury that, before the instrument offered as the will of Meada O. Reynolds can be established, it must be proved by at least three disinterested-witnesses that both the entire body of the will and the signature thereto is in the handwriting of Meada C. Reynolds, and the proof of these three witnesses as to the handwriting of both the body of the will and the signature must be sufficient to convince you that she -actually wrote the will, independent of the evidence of any witnesses to the effect that they saw her write the will-”

This instruction was erroneous in telling the jury’ that, as a matter of law, the testimony of three disinterested' witnesses as to the handwriting of the testatrix must be sufficient, independent of any other evidence, as to the handwriting of the will. The statute, as we have already seen, requires that a holographic will “may be established by the unimpeachable evidence of at leas' three disinterested witnesses to the handwriting of each testator or testairix,” but this statutory provision does not exclude other testimony in corroboration. Before such a will can be sustained it must be proved by the “unimpeachable evidence of at least three disinterested witnesses to the handwriting*,” and the testimony, together with all other testimony in the case, must he sufficient to satisfy the jury, but the court had no right to exclude other testimony which might aid the jury in reaching a conclusion as to whether or not the witnesses were unimpeachable and whether or not their testimony was sufficient to establish the will. This particular question has not heretofore been presented, but our decision in the case of Murphy v. Murphy, supra, sufficiently indicates what the law is on this subject, likewise the opinion of the court in Arendt v. Arendt, supra. In both of those cases we held that the language of the statute meant an unimpeachable witness to be one whom the jury found to have spoken truthfully and whose conclusion they found to be correct, though there was other evidence tending to contradict him. We see nothing in the statute which forbids the corroboration of witnesses to the’ handwriting in order to support their testimony to the effect that the handwriting is that of the testator or testatrix.

After considering all the assignments of error in the-record, we are of the opinion that none of them are well founded, and that the case was properly sent to the jury upon correct instructions and upon legally sufficient evidence. The judgment is therefore affirmed.


text:
    Ponder v. Gibson-Homans Company.
    Opinion delivered December 15, 1924.
    1. Insurance — mortgagee’s rights to recover. — As a general rule, a mortgagee of land who insures it for himself by general insurance, without limiting the policy to his interest, in case of ' loss before discharge of the mortgage, can recover the amount of the loss for his own use; there being no privity between the mortgagor and the insurer, and the money being due upon an independent contract.
    2. Insurance — mortgagee’s right to recover. — Where a mortgagee of land foreclosed without making a prior attachment lienor a party, and purchased and conveyed the property, and the ' grantee insured the property, he was, as to the attachment lienor. a mortgagee in possession, and such creditor, who had no greater right than the mortgagor, was not entitled to have the proceeds of the policy applied to the satisfaction of the debt owed by the mortgagor to the attachment lienor.
    3. Mortgages — priority op attachment lien. — Where a mortgagee foreclosed his lien without making a prior lienor a party, bought in the property and conveyed it and transferred the mortgage notes to his grantee, the latter’s title was subject to the prior lien.
    4. Vendor and purchaser — notice of lien for purchase money. —‘Where purchase money notes were described in a deed conveying land, they constituted notice that the vendor had a lien for unpaid purchase money.
    5. Vendor and purchaser — priority of lien for purchase money. —Where purchase money notes were described in a deed, they constituted a lien prior to that of a subsequent attachment.
    6. Mortgages — liability for rental value of premises. — Where a mortgagee forclosed without making a prior lienor a party, bought in and transferred the property, his grantee will be liable to the lienor for rental value of the property during his possession thereof.
    Appeal from Polk 'Chancery Court; C. F. Johnson, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    This was an action of ejectment by the GibsonHomans Company against G. H. Ponder to recover a lot in the city of Mena, Arkansas, and damages for the wrongful detention of the same.
    The defendant filed an answer setting up an equit able defense, and moved to transfer the case to the chancery court. No objection was made to the motion, and the case was transferred to the chancery court and tried there.
    It appears from the record that on June 1, 1921, the Gibson-Homans Company sued out an attachment in the circuit court of Polk County, Arkansas, against A. B. Palmer, on a claim of $145, ’and the attachment was levied on the property in question as belonging to a nonresident defendant.
    On October 18, 1921, the attachment was sustained and the property ordered sold. The Gibson-Homans Company became the purchaser at the sale for $166.05, on November 26, 1921. On December 16, 1922, the sheriff executed a deed_ to said property to the GibsonHomans Company. The Gibson-Homans Company never at any time had possession of said property. The lot had a residence on it worth from $1,000 to $1,500.
    On October 21, 1920, C. N. Halton conveyed this property by deed to A. B. Palmer for $1,800. Palmer paid $800 in cash and gave his two notes to Halton for $500 each, bearing eight per centum interest from date until paid, and due respectively on October 21, 1921, and 1922. Both of said notes are described in the deed, and both of them were duly assigned by Halton to the Farmers’ & Merchants’ Bank for value. The notes were not paid by Palmer to the bank. Palmer' owed the Farmers’ & Merchants’ Bank an additional sum of $700, and on the 4th day of June, 1921, he executed a mortgage on said lot to said bank to secure this' sum. The mortgage was duly filed for record.
    On the 17th day of August, 1921, said bank brought suit in the chancery court of Polk County to foreclose its mortgage. A decree of foreclosure was entered in its favor on the 14th day of February, 1922.
    The foreclosure decree also provided for a sale of the property for the payment of a note of $500, with the accrued interest, due by Halton to said bank. The property was advertised and sold by the commissioner, and purchased at the sale by said bank. The sale was duly confirmed by the court on April 11, 1922, and a deed made by order of the court by the commissioner to said bank. The bank took possession of the property.
    On May 26, 1922, the Farmers’ & Merchants’ Bank by deed conveyed said lot to G. H. Ponder for a consideration of $1,000, and all of said notes mentioned above Avere_ transferred by said bank to said Ponder. Ponder took possession of said lot and resided on-it until the residence Aims burned, some time in 1923. After he had moved on the lot he had the house insured for his benefit in the sum of $1,500. After the fire the insurance company paid to Ponder said sum -of $1,500, being tbe amount named in his policy of insurance.
    The chancellor was of the opinion that GibsonHomans Company should, be subrogated to the rights of G. H. Ponder in the insurance policy, and found that he should pay to it the balance of the insurance, after deducting the premium and the principal and interest of the two notes for $500 each given for the purchase price of said' lots.
    The chancellor was further of-the opinion that the Gibson-Homans Company was entitled'to the possession of the property.

      A decree was entered in accordance with the findings of the court, and the case is here on appeal.

      Norwood é Alley, for appellant.

      Mmor Pipkin, for appellee.
   Hart, J.,

(after stating the facts). In Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, the court held that one who has purchased personal property subject to a lien for the purchase money has an insurable interest therein.

The general rule also is that a mortgagee of real property who gets insurance for himself, when the insurance is general upon the property, without limiting it in terms to his interest as mortgagee, but when, in point of fact, his only insurable interest is that of a mortgagee, in case of a loss by fire, before the payment of the debt and discharge of the Mortgage, has a right to recover the amount of the loss for his own use. In such case there is no privity between the mortgagor and the underwriter. The money due upon the insurance policy, in case of loss, is upon a distinct and independent contract upon a consideration paid bv the mortgagee. King v. State Mutual Fire Ins. Co., 7 Cush. (Mass.) 1, 54 Am. Dec. 683.

In a case note to. 11 A. L. R., at p. 1299, it is said that, where the mortgagee effects insurance upon the mortgaged propertv at his own expense and for his own bonefit, money received by him on the policy is not a payment on the mortgage, and the following cases are cited which sustain the text: Carpenter v. Providence Washington Ins. Co., 16 Pet. (U. S.) 495; Concord Union Mut. F. Ins. Co. v. Woodbury, 45 Me. 447; Callahan v. Linthicum, 43 Md. 97, 20 Am. Rep. 106; White v. Brown, 2 Cush. (Mass.) 412; Leyden v. Lawrence, 79 N. J. Eq. 113, 81 Atl. 121; Stuyvesant Ins. Co. v. Reid, 171 N. C. 513, 88 S. E. 779; and Dunbrack v. Neall, 47 S. E. (W. Va.) 303.

In Concord Union Mut. F. Ins. Co. v. Woodbury, 45 Me. 447, the court said: “When a mortgagee insures his own interest, without any agreement between him and the mortgagor therefor, and a loss accrues, the mortgagor is not entitled to an allowance of the sum paid upon such loss, to be applied to the reduction or discharge of his mortgage debt, but the mortgagee may, notwithstanding, recover the whole amount due! White v. Brown, 2 Cush. 413; King v. State M. F. Ins. Co., 7 Cush. 1; Cushing v. Thompson, 34 Me. 496.”

Again, in the case of Fox v. Phenix Fire Ins. Co., 52 Me. 333, the court said that different mortgagees of the same property have independent interests, which each-may insure for his own benefit for the full amount.

In Deming Investment Co. v. Dickerman (Kan.), 66 Pac. 1029, 88 Am. St. Rep. 265, it was held that a contract of insurance upon property sold1 at a foreclosure sale between the purchaser and an insurance company is a personal contract of indemnity between such’ purchaser and the company alone, which does not inure to the benefit of the party entitled to redeem, and the purchaser, having collected the insurance money after the property has been destroyed by fire, is under no obligation to account for it to such redemptioner.

In the case of Cushing v. Thompson, 34 Me. 496, in discussing the question the court said: “The interest insured was that of the defendant alone. It does not appear that the complainant paid any part of the premium, had any connection with the insurance, or knew of its existence, till the loss of the property. The defendant could not have compelled payment from the complainant of the premium or any part of it. It is well settled that a contract of insurance does not run with the estate, as incident thereto, but is ah agreement with the underwriters against a loss which the assured may sustain, and not the loss which another may be subjected to, having an interest as mortgagor, redemptioner, or otherwise. Adams v. Rockingham Ins. Co., 29 Me. 292; White v. Brown, 2 Cush. 412.”

It follows from these authorities that the mortgagor would have no right to any part of the insurance policy in question. The policy of insurance was taken out by the purchaser at the foreclosure sale for his' own benefit, and the premium was paid by him. In this connection it may be conceded, as contended by counsel for the plaintiff, that the foreclosure decree did not affect its lien under the attachment suit, because it was not made a party to the foreclosure suit, and because, under the facts of this case, its attachment lien existed before the mortgage in question was executed to the bank.

The record shows, however, that the bank assigned the mortgage notes to Ponder, who purchased the lot at the foreclosure sale, and'Ponder should be treated, so far as the plaintiff is concerned, as a mortgagee in possession. As such mortgagee in possession he had an insurable interest in the property, and, the insurance policy having been taken for his own benefit, the mortgagor has no interest in it.

The plaintiff in this case only acquired the interest of the mortgagor at the attachment sale, and would have no greater rights in the premises than the mortgagor. Hence it was not entitled to claim that the proceeds from the fire insurance policy should be applied to the satisfaction of any debt owed by the mortgagor to the mortgagee. The rights of the piaintiff under its attachment are superior to those of Ponder as assignee of the mortgagee. The two notes for the purchase money for $500 each were described in the deed by which the property was conveyed to Palmer, and, under the repeated decisions of this court, constituted notice that the vendor had a lien on the lot for tiae unpaid purchase money. These purchase money notes were dated October 21, 1920, and were described in the deed from Halton to Palmer. The plaintiff did not obtain a lien on the property by virtue of its attachment until June 1, 1921.

These purchase money notes were assigned by the bank to Ponder. It follows that they are a prior lien on the lot in question to that secured by the plaintiff under its attachment suit, and Ponder will be entitled to have his equitable lien for the amount of the two purchase money notes for $500 each and the accrued interest foreclosed, .and to have the lot sold to satisfy the same. He should be required to account for the rental value of the property during the time he has had it in his possession; but, under the views we have expressed above, he will not be required to account to the plaintiff for any part of the insurance money.

It follows that the decree will be reversed, 'and the chancellor directed to enter a decree in accordance with this opinion.