This case presents a dispute as to the ownership of certain lands in Chicot county, Ark. The appellant, who was the plaintiff below, holds a commissioner's deed made by order of the circuit court of that county in a foreclosure suit brought by the personal representative of Junius W. Craig, while the appellees hold a commissioner's deed made by order of the same court, in the same cause, at a subsequent date. The relief sought is a decree restraining the defendants from all attempts to take possession of the lands, or from obtaining a writ of possession for them. The bill having been dismissed, the present appeal has been prosecuted.
The transcript does not contain the pleadings in the suit in which the lands were sold, but from various orders made in that cause, copies of which are made exhibits to the bill in the present suit, the following facts appear:
On the 2d day of February, 1878, the equity suit of Emma J. Wright, executrix, v. Samuel R. Walker et al. came on to be heard in the Chicot circuit court on the answer and cross bill of John S. Whittaker, executor of the estate of Horace F. Walworth, deceased, the motion to strike out a part of that answer and cross bill, and a demurrer to the remainder thereof, the petition of Richard H. Stuart, and the motion to strike out the same, and the original pleadings in the cause. These motions and the demurrer were sustained, and it was adjudged that there was a lien on the lands here in question to secure the payment of a certain sum found to be due the plaintiff in that suit. The lands were ordered to be sold at public auction in satisfaction of that amount, on the notice required in cases of sales of land under execution, the terms being one-half cash and the balance in eight months, with a lien retained to secure the deferred payment. James R. Martin was appointed commissioner to make the sale. Whittaker, as executor of Walworth, excepted to the decree, and prayed an appeal, which was granted.
An order was entered, February 5, 1879, appointing R. M. Gaines commissioner, in the place of Martin, to make the sale.
On the 27th of February, 1879, a written agreement, signed 'C. H. Carlton and W. W. Wilshire,' as 'attorneys for Whittaker et al.,' and by D. H. Reynolds, as 'att'y for receiver,' was filed in the cause, and was as follows: 'In the above-entitled cause, it is hereby agreed that the proceeds of any sale or sales that may be made under any order or orders of sale or decree of the court aforesaid shall be paid into said court by the master or commissioner appointed by said court, sitting in chancery or at chambers, for the sale of the property, or any part thereof, ordered or decreed to be sold by said court in said cause, and held by said court until the disposition of an appeal taken by said John S. Whittaker, in said cause, to the supreme court of this state, and now pending, is disposed of, and the mandate of said supreme court therein is filed in the office of the clerk of said circuit court, and then only in pursuance of such mandate in the further proceedings in said circuit court.' Commissioner Gaines made his report July 15, 1879, showing a sale of the lands under the above decree, upon due notice, on the 1st ady of May, 1879, at which sale Halliday, being the highest and best bidder, became the purchaser at the price of $1,200, one-half of which was paid at the time in cash. The commissioner brought the cash payment into court, and reported for examination and approval a deed to Halliday retaining a lien for the deferred payment. The court confirmed the sale in all things, and approved the deed, directing its approval to be entered of record, indorsed on the deed, and recorded with it.
From the exhibits attached to the answer, the following facts appear: