Stanley v. Deihough

OPINION. Cockeill, C. J. As to the-item of the Walton note, the appellant is not in position to complain of the judgment of ihe circuit court. Alter the probate court had adjudged .that he should stand charged with the amount of the note, he demanded and received it of his successor in the trust to whom he had previously delivered it; he surrendered it to the maker,- received from him a small sum in part payment, .took from him three new notes secured by mortgage on real estate for the residue, payable to the order of his wife, extending the time of payment one, two and three -years from their date. • This was thé attitude of the matter when the cause came on to be heard in the circuit court on appeal. The acts indicated the intention on the part of the appellant to treat the note as his own. But he could not take the note and be subrogated to the rights of the payee, without electing to stand charged with the amount it represented in accordance with the judgment of the probate court. The benefit to be derived from the ownership of the note conld be enjoyed only by abiding by the judgment of the court to the effect that he should pay the amount. One cannot accept a benefit under a judgment or order of court, and also prosecute an ¡appeal from the burden it imposes when the two are dependent upon each other. The election to assert one right is a waiver of the other. Baylies’ New Trial and App., 18-19; Dismukes v. Halpern, 47 Ark., 317. So that if it be conceded that the probate court can make good a sale of a ward’s estate made without the authority of the court, and that the circumstances were such at the outset as to give the appellant the legal right to demand a ratification of his acts, his conduct after the judgment of the probate court refusing to confirm the sale, shows that he renounced the right. But it is argued that, if it was proper to confirm the sale at the outset, the appellee should have received the new notes in lieu of the old. There was no legal obligation upon him to do so. That was not the purpose for which the appeal was prosecuted; the appellant had made his election to stand on the court’s rejection of his sale, and he could not change position without the assent of his adversary. Moreover the new notes were not of the same tenor and effect as the old ¿ and no tender of them was ever in fact made in or out of court. As to the claim for extra services and attorney’s fees made by Stanley, the burden of proof was upon him to show that he was entitled to the credits. The evidence upon these points in the bill of exceptions is too meagre, vague and indefinite to warrant us in interfering with the judgment. Affirm.