Rhea, Adm'. et al. v. Puryear, et al. [DECEMBER

after the cause had been submitted to the court for final determination.

Should the court have found against the complainants, upon the demurrer clause in the defendants' answer alleging that Carter, as administrator, was not made a party complainant? We think not. We see no possible ground upon which the defendants in this suit could have been prejudiced for want of such party to the bill. There is no allegation of indebtedness against Puryear's estate, or that the administration had not been closed. The record discloses no interests, favorable or adverse, of any of the defendants in the assets of that estate, and no grounds upon which they might be liable in another suit. And, upon a careful examination of the bill, we find no admission that Carter or any one else was an administrator of Puryear's estate at or after the bringing of this suit. The bill states that during the year next after the death of Puryear, John Carter, as administrator, and the heirs of Puryear possessed the lands.

Puryear died in 1852; the statute law required the administration to close within two years, unless for good cause, the court of probate should extend the time for final settlement; then, if he was administrator in 1853, it was his duty to have closed that administration in 1855, and the presumption would certainly be rash and against law to suppose such administration continued until the 18th of April, 1859, nearly seven years, at which time this suit was commenced. Then it is assumed that there was an administrator, (with no allegations to that effect), and so far as we can see, no necessity for the appointment of one.

We can not see the force of the next and principal ground urged against the complainants' recovery. This was not a sale and proposed transfer of lands, as contemplated by the statute, to prevent frauds, etc., which requires real estate contracts to be in writing, or the payment made or certain performance done before relief can be had.

The ground here assumed, and I may say established, is that

TERM, 1870.] Rhea, Adm'r. et al. v. Puryear, et al.

Rhea was the agent of Puryear, employed to invest Puryear's money in specific property, and for Puryear's use, being thus intrusted it was a fraud on his part to attempt to control such means for his own benefit or in his own name, and all profit or advantage resulting therefrom would certainly in equity inure to Puryear; and these facts appearing in the bill and proofs were sufficient to sustain a decree without any express words declaring that a resulting trust existed in favor of Puryear's heirs. Some courts go further and declare that acts fraudulent in themselves are overridden by the statute..

In Miller et al. v. Colton et al., the Supreme Court of Georgia say: "We fully recognize the doctrine that a court of equity will not permit the statute of frauds to be set up as a defense, by a party infected with fraud, and that parol trusts in real estate may be established in direct contradiction to the statute on the ground of fraud." 5 Ga., 346.

In many cases, even where parties purchased real estate with their own money, the courts have holden that it would be a fraud to allow them to hold the lands against those beneficially interested, and for whom it had been agreed such purchases should be made. Jones v. Hubbard, 6 Munford, 263; Davis et al. v. Hopkins, 15 Ill., 522; Miller v. Thomas, 14 Ill.; Trapnall v. Brown, 19 Ark., 39; Pyatt v. Oliver et al., 2 McLean, C. C. R. 267; Furguson et al. v. Williams et al., 20 Ark., 272; Cain v. Leslie, 15 Ark., 312.

In the last case, by agreement, Leslie, with his own money, entered lands, including Cain's improvements, and afterwards refused to convey to Cain, but conveyed one-half to others, who it was alleged connived with Leslie to obtain the lands. Chief Justice WATKINS said: "It seems to be clearly a case where, unless the agreement be performed, an unconscionable fraud and deceit will have been practiced upon the complainant."

Finally, we are asked to reverse this decree because the complainants were permitted to amend their bill upon a discovery of a mistake in the numbers of the land, after the cause was

Hanauer & Co. v. Casey, Adm'r.

[DECEMBER

submitted for final hearing. An objection like that ought not to be tolerated on the law side of a court, and in equity, where an enlarged discretion should always be exercised to meet the ends of substantial justice, such exceptions become frivolous.

The Chancellor below gave the defendants until the next term to amend their answers, ordered the issues to be formed anew, again set the case down for hearing, and granted the parties further leave to take depositions; and then taxed complainants, because of their oversight, with the costs of five terms of the court. To have granted the appellants more would have outraged justice upon a pretense of doing equity. Upon the record we find no error prejudicial to the appellants.

The decree is affirmed.

HANAUER & Co. v. CASEY, Admr.

ATTACHMENT-Priority.—A sale of lands under a junior attachment does not release the lien of a prior attachment, and the money arising from such sale is not to be applied in payment of the prior attachment. If lands be sold at the same time under both executions, and the levy of the prior attachment thereby discharged, then the money arising therefrom, or so much thereof, should be applied in payment of the judgment under the prior attachment. EXECUTION SALES-Proceeds, how applied.-Personal property is bound from the time the execution came into the hands of the sheriff, and where there are several executions, coming to hand at different times, and a sale under the last, the proceeds should be applied in satisfaction of the others in their order.

Appeal from Randolph Circuit Court.

HON. ELISHA BAXTER, Circuit Judge.

TERM, 1870.] Hanauer & Co. v. Casey, Adm'r.

Byers & Cox, for appellants.

We submit: In the first place, according to the rule laid down by the Supreme Court of this State, in the case of Trapnall et al v. Jordan et al, 7 Ark., 430, the court had no jurisdiction of the subject matter of Casey's petition, and we suppose the circuit court should be bound by the same. See sec. 7, 96 Gould's Dig., p. 63–4.

ch.

In the second place, the sheriff was not made a party, was not served with a notice, and the order, as to him, would be coram non judice, and void. State Bank v. Noland, 13 Ark., 299; Newton v. State Bank, 14 Ark., 13; same v. same, 22 Ark., 27; Adamson v. Cummins, 10 Ark. 541.

In the third place, the decision is directly in the face of the clear and palpably plain language of the statute, and in effect nullifies the statute, (see sec. 6, chap. 96, Gould's Dig., p. 634), and we submit should be reversed.

Watkins & Rose, for appellee.

This case is governed by section 52, chap. 17 Gould's Digest, by which the proceeds of the sale go to the extinguishment of the oldest lien, no matter how the property may be sold; and this seems to be the universal rule where there is no statutory provision to the contrary. State v. Salyers, 19 Ind., 432; Straley's appeal, 43 Penn. S. R., 89; Thompson v. Cardel. 27 Ga., 273; 1 Tenn. R, 729; Russell v. Gibbs, 5 Carr., 390; Rowe v. Richardson. 5 Barb., 385; Lynch v. Hanahan, 9 Rich., (Law. S. C.) 186; Gilmer v. Warren, 17 Ga., 426; 1 Paige Chy., 181, 558; Neill v. Lancks, 6 Barb., 470; Bagley v. Reeves, 20 Ala., 427; Brown v. Hamlin 23 Miss., 392; Peck v. Tiffany, 2 Comst., 451; Steele v Hanna, 8 Blackf., 326; Newton v. Nunnelly, 4 Ga., 356. The question as to the sheriff being made a party, cannot arise here, as he is not making any contest. Ringgold v. Stone, 20 Ark., 526; and, being an officer of the court, he is presumed to have notice. Brant's appeal, 20 Tenn., 8 (Harris) 364.

Hanauer & Co. v. Casey, Adm'r.

[DECEMBER

"Where the parties, interested in the distribution of money in the sheriff's hands, appear, and state an agreed case, the court may determine the right, although the sheriff has not made the application." Turner v. Lawrence, 11 Ala., 426. The court will not disturb the verdict below for any error which could not injure the appellants. Clark v. Barnett, 24 Ark., 30; Blackwell v. Pattan, 7 Cranch., 471; Campbell v. Pratt, 2 Pet., 354; Greenleaf v. Brith, 5 Ill., 132; Boardman v. Reed, 6 Id., 328; Phillips v. Preston, 5 How., 278; McMicken v. Webb, 6 ld., 292; Randon v. 1oby, 11 Id., 493; Thomas v. Lawson, 21 Id., 343; Chandler v. Van Roeder, 24 Id., 225; Thompson v. Roberts, Id., 233.

HARRISON, J.

James M Casey, as administrator of Andrew J. White, deceased, brought suit, by attachment, in the Randolph circuit court, against Hiram A. Kelsey. The writ was, on the 19th day of March, 1869, levied on certain lands, and judgment for his debt was recovered on the 9th of May, 1868. On the 20th day of March, 1867, the same lands were again attached, at the suit of Louis Hanauer and Jacob Hanauer, before a justice of the peace, and judgment was recovered by them. Executions on both judgments were delivered to the sheriff at the same time, and the lands were sold by him under each, on the first day of the March term, 1869. They were offered first under Louis and Jacob Hanauer's execution, and purchased for seventy-five dollars, by John P. Brimmage, jr., and then under Casey's, and purchased for eight dollars, by Ewing Y. Mitchell.

Casey, upon the return of the executions, moved that the sheriff' be ordered to pay the money arising from the sale, under Louis and Jacob Hanauer's execution, to him, upon the ground that his attachment was prior to theirs. Louis and Jacob Hanauer appeared and resisted the motion, but the same was sustained by the court, and the money was ordered to be paid to Casey, and they appealed from the decision.