Jones, McDowell & Co. et al. v. Arkansas Mechanical and Agricultural Co.

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 Barb., 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 liens, 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 com

Chrisman v. Partee and wife.

pany, who after the purchase, became associated with him
in the new.
There was no evidence whatever that they con-
templated, when he purchased, forming a new company,
and he swears in his deposition that he purchased for him-
self 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.

CHRISMAN V. PARTEE AND WIFE.

1. MARRIED WOMEN: May convey, but not contract to convey, their lands. Married women may convey estates acquired since the adoption of the Constitution of 1874, but cannot make executory contracts to con

Where a husband, having use of his wife's lands, contracts to convey them, with her approbation, to one who knows that the fee is in the wife, and the husband and wife promptly join in the execution of a deed and tender it to the purchaser, and he, for no good reason, declines to accept it, and they join in a bill for specific performance and tender a good deed in court, and the Chancellor decrees performance, the decree should not be reversed on appeal. SMITH, Special Judge, dissenting.

APPEAL from Pulaski Chancery Court.
Hon. JOHN R. EAKIN, Chancellor.

STATEMENT.

This was a bill by Partee and wife against Chrisman, for

Chrisman v. Partee and wife.

specific performance of a contract for the exchange of real property.

The facts and issues, as contained in the pleadings, are sufficiently stated in the opinion of the Chancellor, which is inserted by direction of the court; and to avoid a repetition of them here, is referred to on page 38.

The hearing was upon the pleadings and exhibits, as set out in the opinion, and the following

DEPOSITIONS.

The plaintiff, Reuben D. Partee, deposed, in substance, as follows:

"About the first December, 1876, while on my way from Little Rock to my wife's place, commonly called the Mosby place, I met with Chrisman, and he asked me how I would like to exchange the place for city property in Little Rock. I replied, 'very well, if the town property was available." The result of this interview was that three days afterwards I went to Little Rock to see his property, and he then showed me all through it. It was the Central Hotel property. The next day we went to the Mosby place to examine it. I rode over it with him—that portion of it described in the deed and contract exhibited with the complaint. He expressed himself well pleased with the place. Several days afterward he and his brother came to the place, and I went over it with them. A few days after this I went to Little Rock to see if we could trade, and during the negotiations the question of title came up, and I told him that there was no difficulty about the title; that the place belonged to my wife, and had been in the family for twentyfive or thirty years, and she inherited it from her father's estate. We thereupon went to the office of Fletcher & Bay and had the contract drawn up, which is exhibited with the complaint. A deed was also prepared for me to carry

Chrisman v. Partee and wife.

home in Mississippi and have my wife to execute it. We lived then and now in Mississippi. Before leaving Little Rock the defendant came to me and stated that he wanted some changes made in the deed, and I left it with him to be changed and forwarded to me in Mississippi. A few days after my return home I received the deed, with a letter from the defendant, of which the following is a copy:

"Mr. Partee:

"LITTLE ROCK, ARK., Dec. 20, 1876.

"I send deed as you gave it to me. It is as I want it, upon second reflection.

"Respectfully,

"F. M. CHRISMAN."

"In a day or two my wife and I signed and acknowledged the deed, and I started with it the next day to Little Rock; and on my arrival there, informed the defendant that I had the deed all fixed up, and was ready to complete the contract. He replied that he was sorry to inform me that his wife would not convey with him; that he was ready and anxious to carry out his agreement, but his wife would not join him. He assigned no other reason for his refusal, and said he was willing to make the deed himself, if I would take it without his wife's joining. I told him that he ought to indemnify me against his wife's dower; but he said he could not do that. We then separated, but that night I again called on him, and told him I would take his deed without his wife's joining. He then absolutely refused to execute it or carry out the contract, and said he would have to take the consequences.

The next day I tendered the deed to him at his office at the hotel, and at the same time demanded of him a deed to the hotel property and possession of it. He again refused to comply. The personal property, stock, farming imple

Chrisman v. Partee and wife.

ments, etc., included in the exchange, was all on the plantation, and was to be delivered when the deeds were executed.

"On the day that I returned to Little Rock with the deed, and offered to carry out the contract, he told me that he had been down to the place, and found everything as I represented, except the corn, which he thought was more than I represented. He had also taken possession of one of the mules and carried it off.

"He never at any time complained of any deficit in the forty-acre tract at Wildcat Landing; but at the time of the contract it was distinctly understood with the defendant that five acres of the forty-acre tract was to be reserved in the conveyance for James B. Core, in lieu of his wife's interest in the forty-acre tract. My wife and Core's are sisters, and each owns an undivided half interest in the tract.

"Chrisman was fully informed of the whole matter, and well understood that the title to the lands was in my wife, and the deed had to come from her. One day, before the written contract was drawn up, when I was showing him the lands, we would frequently stop and examine the plat of the land I had with me, showing the division of the land among the heirs of my wife's father, consisting of my wife and her two sisters and the widow. On this plat was distinctly marked the metes and bounds of the several interests-the division lines between them, and the names of the heirs on their respective parts-and I fully pointed out and explained to Chrisman my wife's interest on said plat. I had full authority from my wife to dispose of the place before I ever saw Chrisman, and pending the negotiations with him, and before the contract was drawn up, I received a letter from her, expressing the hope that I would consummate the trade. I had before informed her of the negotiations.