The money claimed by the inter-pleaders, Taylor & Co., was collected upon notes endorsed and delivered to them by the defendant, the Judsonia Mercantile Co., as collateral security for a debt which remains unpaid. They received the notes several months before the deed to Hanson was executed, and continued to hold them up to the date of the judgment rendered in this cause. Their right to the sum in controversy is denied on the alleged ground that they agreed to surrender the notes in consideration of having their debt preferred by the deed, and that they afterwards claimed the benefit of that preference by an interplea filed in one of the attachment suits. It is argued that this was an election to accept the provision contained in the deed, and that the security acquired by the pledge of the notes was thereby relinquished. But the inter-plea referred to does not- import an intention to relinquish the security afforded by the notes, except upon the condition of obtaining that provided in the deed ; and the • latter, it is conceded, was void. An election is a choice between two rights or benefits. Bishop, Cont. secs. 779, 781; Black’s Dictionary, 412. And as the deed was void, and could not possibly confer any right or benefit, no case of election was presented by its mere execution. It is true that Taylor & Co. could not “ accept, and reject the same instrument; ’ ’ and if they had received a dividend or other advantage under the deed, they could not afterwards impeach its validity. 2 Perry, Trusts, sec. 596 ;. Bispham’s Bq. secs. 245, 306 ; Frierson v. Branch, 30 Ark. 457. But they have received nothing under it, and obtained no advantage whatever because of its execution ; and the doctrine of election does not apply.
The plaintiff, the Kraft-Holmes Grocer Co., was not a party to the deed nor a beneficiary under it; and we cannot see that it stands in any attitude entitling it to complain that Taylor & Co. have not executed the alleged agreement to surrender the notes. But waiving this point and conceding that Warren had authority to make the agreement, it was merely executory; and as it was based upon a consideration that has entirely failed, Taylor & Co. are under no obligation to perform it.
We think the court’s declaration of law was not applicable to the case; and that, upon the facts embraced in the agreed statement, the finding should have been for the interpleaders. The judgment will therefore be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.