Smith v. Woolfolk

The bill in this case was filed by Joseph S. Woolfolk to foreclose a mortgage executed to him by William H. Todd, the intestate of L. H. Springer, one of the appellants, upon the Belleview plantation, situate in Chicot county, Arkansas.

The record discloses the following facts:

Junius W. Craig, a citizen of Arkansas, and the owner of the Belleview plantation, had, on December 5, 1856, mortgaged it to Mrs. Lucy D. Craig, the widow of his brother, to secure $41,666, owing by him to her. Some time after the date of the mortgage, Mrs. Craig intermarried with Joseph H. Woolfolk, the appellee. Junius W. Craig died on September 17, 1858. On March 16, 1866, Joseph H. Woolfolk and Lucy D., his wife, William H. Frazier, assignee of A. D. Kelly & Co., William H. Todd, and others, in behalf of themselves and all other creditors of the estate of Junius W. Craig, filed their bill in equity in the circuit court of Chicot county, Arkansas, against Emma J. Wright, executrix of the last will of Junius W. Craig, and others, for the settlement of his estate. The case is styled in the record 'The creditors of Junius W. Craig v. Emma J. Wright, Executrix, and others.' The bill alleged that many debts had been proven against the estate, amounting in all to the sum of $236,289.34, among which was the debt above mentioned due to Mrs. Lucy D. Woolfolk, a debt due to Frazier, assignee of A. D. Kelly & Co., for $45,607.76, and a debt due to Todd for $47,181.60. The prayer of the bill was that the lands of the estate might be sold and the proceeds distributed among the creditors.

On August 30, 1867, the plaintiffs in the original bill, including William H. Todd and Joseph S. Woolfolk and Lucy D., his wife, filed a supplemental bill of revivor, in which, among other things, they averred the pendency of an intervention, filed by Woolfolk and wife in the chancery court of Jefferson county, in the state of Kentucky, praying to have the debt due them satisfied out of the property of the estate of Craig, in Kentucky. The supplemental bill prayed the same relief as the original bill. The lands of the estate were brought to sale in accordance with the prayer of the bill, and most of them, including the Belleview plantation, were purchased by Todd. Upon a report of the sale, the share of Mrs. Woolfolk in the proceeds was found by the court to be $9,831, and Todd, having paid a small part of this sum, Woolfolk, for the residue, took the two notes of Todd, pay ble to himself, for $4,243.20 each, to secure which Todd executed to him a mortgage on the Belleview plantation. The court having distributed the proceeds of the sales of the lands, directed the receiver to collect the available assets of the estate, and report to the next term of the court. By his reports, subsequently made, it appeared that the receiver had been able to collect only the sum of $157, which the court allowed him to retain as his compensation, so that nothing remained of the original cause in which Woolfolk and his wife were in any way concerned.

Afterwards, on April 12, 1869, during a vacation of the court, Todd, who had become by assignment, the owner of the claim of A. D. Kelly & Co., filed a petition in the case of The Creditors of Craig v. Emma J. Wright, Executrix, and others, in which he alleged, among other things, that Woolfolk and wife had brought suit in the chancery court of Louisville, Kentucky, against Todd and the heirs of Craig, to subject to the payment of the balance due Mr. Woolfolk from the estate of Craig certain real estate in the city of Louisville. The petition averred that the proceeds of the Louisville real estate should be first applied to the satisfaction of the claim of A. D. Kelly & Co., which had been classed as a preferred debt by the probate court in Arkansas, and prayed that Woolfolk and wife might be required to account for any proceeds of the Louisville real estate received by them, according to the rights of creditors, as declared by the Arkansas probate court; the purpose of the petition being to subject the money arising from the sale of the Louisville property to the payment, first, of the claim of A. D. Kelly & Co., owned by Todd. Upon this petition the Chicot circuit court made an order that Woolfolk and wife answer the same on or before the third day of the next term, and that in default thereof the petition should be taken as confessed, and that service of the order, 'by letter or on attorneys of said parties, be sufficient service thereof.'

The statutes of Arkansas do not authorize service of process in either of the methods directed by the order. Nevertheless, the sheriff returned that he had served the order by mailing a copy thereof to Woolfolk and wife, directed to their address, without naming it. C. H. Carlton, upon whom, as attorney of Woolfolk and wife, it appeared that a copy of the order had been served, filed a writing in the case, in which he said he was not their attorney, but the attorney of Todd, the petitioner, and disclaimed any interest in the cause on behalf of Woolfolk. Upon these facts the court decided that there had been sufficient service of the order. Todd having died, the Chicot county circuit court, on January 23, 1880, by its order entered in the case of The Creditors of Craig v. Emma J. Wright, Executrix, and others, made L. H. Springer, his administrator, plaintiff in his stead; and upon the same day decreed, among other things, that said L. H. Springer, as administrator of Todd, 'have and recover of and from Lucy D. Woolfolk and Joseph H. Woolfolk the sum of $37,995.65 out of the said funds and assets in their hands' of the estate of Junius W. Craig, 'and that payment thereof be enforced by execution as upon executions at law.' This decree was based upon the report of a master who returned into the court none of the evidence, if there was any, upon which it was based. Before the decree just recited was made. Woolfolk, on October 27, 1879, brought in the circuit court of the United States for the Eastern district of Arkansas the present suit, to enforce, by the foreclosure of the mortgage made to secure them, payment of one of the two notes for $4,243.20, (the other having been paid,) given by Todd to him for the share of Mrs. Woolfolk in the proceeds of the sale of the Belleview plantation. L. H. Springer, the administrator of Todd's estate, and Benjamin H. Smith, who before the death of Todd had acquired all his title to the mortgaged pre ises, were made defendants. Smith in his answer insisted upon his right to set off the decree rendered against Woolfolk and wife in favor of the administrator of Todd's estate by the circuit court of Chicot county, on January 23, 1880, and set up the seven years' statute of limitations of the state of Arkansas in bar of the suit. Springer, the administrator, adopted the answer of Smith, and offered to set off so much of the decree in favor of Todd mentioned in the answer of Smith as would satisfy the demand of the plaintiff.

Woolfolk, whose deposition was taken, testified that since October, 1868, Carlton, on whom the order of the court above mentioned was served, had not been his attorney, and that he himself had never heard of the petition of Todd until after the final decree had been rendered thereon, and that his wife, Lucy D. Woolfolk, had died in the year 1876, four years before the entry of the decree; that from the year 1856 until her death she had resided in Kentucky, and that he had resided there all his life. The deed of the receiver to Todd for the Belleview plantation was executed on October 28, 1868. It appeared from the evidence that Todd and the appellant Smith, who claimed under him, had been in possession of the mortgaged premises ever since that date.

Upon final hearing, the circuit court, on November 2, 1881, rendered a decree in favor of the plaintiff for $9,743, to bear interest from the date of the decree, and in default of payment ordered a sale of the mortgaged premises to satisfy the same. From this decree the defendants, Benjamin H. Smith and Springer, administrator of Todd, have appealed.

F. W. Compton and A. H. Garland, for appellants.

U. M. Rose, for appellee.

WOODS, J.