Jones, McDowell & Co. v. Ark. Mech. & Agl. Co.

Harrison, J.,

dissenting. I am unable to concur in the-opinion in this case.

I think, if there might be a sale of the property, if the-appellants be not paid, as is directed, that the $4,000 paid by-Weeks in the purchase of it at the foreclosure sale, ought, before their claims are satisfied out of the proceeds, to be refunded to the Arkansas State Fair Association. As to so-much thereof as went to satisfy the decree, it seems to me clear beyond question ; and if the appellants had no liens,, as the opinion holds, it is equally so, as to the remainder.

I am, however, of the opinion that they did have liens.. No particular day was named in the executions upon which the constable was required to return them. The Statute-(sec. 3792 Gantt’s Digest) says that the execution “must be dated as on the day- on which it is issued, and made returnable within thirty days thereafter.” It was not necessary that the constable should have retained them in his hands until the last day within which they were returnable ; but if the facts warranted it, he had the right to make the returns he did on any day within the thirty days after their-date, or during their life, and his returns were conclusive as to the facts stated in them. Lovegrove v. Brown, 6 Maine, 592; Dana v. Banks, 6 J. J. Marsh, 219; Bowen v. Parkhurst, 24 Ill., 257; Thornton v. Lane, 11 Ga., 459; Wilcox v. Ratcliff, 5 Blackf., 561; Forbes v. Waller, 25 N. Y., 430; Renaud v. O'Brien, 35 N. Y., 99; Tyler v. Willis, 33 Baib., 327; Freeman on Executions, sec. 353.

But if such an objection could possibly be raised, it could ■only be directly by motion to set aside the return, and not in a collateral proceeding. Tyler v. Willis, supra; Sterling v. Levy, 10 Abb. Pr., 426.

Townsend’s lien, presuming as I do that he had one, was junior to that of Jones, McDowell & Co., and was extinguished by the sale under their execution, which, as a matter of course, also extinguished theirs.

If the appellants never had liens on the property, how could they, then, have any on the proceeds of the sale, or the surplus, after paying Wait?

But Jones, McDowell & Co. are not now creditors. Their judgment was satisfied by their purchase of the equity of redemption in the property at the sale under their execution. If they had a lien, this was most assuredly the ■case.

And if the appellants had no Jiens, their claims were not superior to those of the other creditors, who were paid out •of the surplus. A debtor has the right to prefer one creditor to another.

Weeks, being a director of the company, was prohibited ■by public policy from purchasing the property — but there • was not, so far as I can see, the slightest ground in the evidence for imputing to him bad faith or unfairness. Indeed, his conduct appears to have been characterized by great fairness and liberality.. Nor can I see any cause for attaching blame or censure to the other stockholders of the old company, who after the purchase, became associated with him in the new. There was no evidence whatever that they contemplated, when he purchased, forming a new company, and he swears in his deposition that he purchased for himself only.

But if bad faith had existed, the money paid in the purchase should nevertheless be paid back, for “he who seeks equity must do equity.”

I think the decree of the court' below was right, and should not be disturbed.