Kempner v. Dooley

Hughes, J. 1. Discretion, as to amendments. (after stating the facts). It was in the sound discretion of the circuit court to permit or refuse to permit the amendment offered by the appellee, Dooley, to be made at the time it was offered, and the court is of the opinion that the circuit court did not abuse its discretion in refusing to allow the amendment to Dooley’s answer, after the cause had been heard upon the pleadings and evidence. % Marshaling assets. When Allen Adams had mortgaged his land to secure the payment of the debt of B. L. Adams, be stood in the attitude and had the equities of a security for the payment of the debt of B. B. Adams, and his interest should have been protected by the sale first of B. B. Adams’ land mortgaged to secure payment of the same debt. When the principal and surety each mortgages his own property to secure the debt of the principal, the surety is entitled to have the property of the principal sold first, and the proceeds of the sale applied in satisfaction of the debt. Keel v. Levy, 19 Oregon, 450; James v. Jacques, 26 Tex. 320; Neimcewicz v. Gahn, 3 Paige, Ch. 614; Pacific Guano Co. v. Anglin, 82 Ala. 492. 3. Duty of chancery court to protect infants. In. this case, however, there is no appeal from the decree that Allen Adams’ land should be first sold, by any of the heirs of Allen Adams. But one of these heirs, who was made a party to the suit, was an infant at the time of the decree, and still is, and, though she has not appealed, a court of chancery will protect her interest, as minors in a suit in equity are wards of a court of chancery. “The chancellor is the guardian of all infants whose rights are drawn in question before him, and it is our duty to see that they are protected.” Tillar v. Cleveland, 47 Ark. 288. For the error in ordering the interest'of the minor heir in Allen Adams’ land first sold to satisfy the debt of B. L. Adams, the decree is reversed, and the cause is remanded with directions for a decree, and for further proceedings according to law, and not inconsistent with this opinion.