Adams v. Edgerton

• Decision Date: 05 March 1887
• Citation: 3 S.W. 628
• Parties: ADAMS <I>v.</I> EDGERTON.
• Court: Arkansas Supreme Court

3 S.W. 628

ADAMS

v. EDGERTON.

Supreme Court of Arkansas.

March 5, 1887.

Appeal from chancery court, Pulaski county.

P. C. Dooley, for appellant. John Fletcher, for appellee.

SMITH, J.

In the year 1872, Edgerton sold to William H. Rector and Henry Powers a block of ground in Capital Hill extension to the city of Little Rock for $1,750, of which sum $550 were paid down, and for the residue the notes of the purchasers were taken. In 1874, shortly before the maturity of the last of these purchase notes, Rector conveyed his other lands to Powers, and Powers on the same day reconveyed to Rector's wife, Celine. The consideration expressed in the two deeds is respectively $1,000 and $1,200, but no money was in fact paid, nor any other thing of value delivered or agreed to be paid or delivered; so that the transaction is transparently a voluntary settlement by Rector upon his wife. In 1876, Edgerton obtained a decree in the proper court against Rector and Powers for $1,528, and for the enforcement of his lien as vendor on the block sold them. Under this decree the property was sold for $100. In 1878, Celine Rector died childless; her heirs being her mother and her brothers and sisters. In 1881, Edgerton caused execution to be issued for the balance due on his decree, and it was levied upon one of the tracts which had been conveyed to Celine Rector. Edgerton and Rector then agreed to compromise the indebtedness at $500, for which sum Rector executed his notes, and secured the same by a mortgage upon the tract so levied upon. Edgerton seems to have been ignorant of the previous conveyances to Powers and to Celine Rector, although this is immaterial, if he was chargeable with constructive notice by their registry. The conveyances had been in fact duly acknowledged and admitted to record in the proper office shortly after their execution. In those deeds the land is described as "three-fourths of the south part of the north-west quarter of section 30, township 1 south, range 10 west," containing 44.31 acres. The correct technical description is: "Undivided three-fourths interest in and to the south half of the north-west quarter of section 30, township 1 south, range 10 west," and the land is so described in the mortgage.

Edgerton now exhibited his bill against Rector and the heirs at law of his deceased wife, Powers being out of the jurisdiction, to set aside these conveyances as fraudulent against him, a pre-existing creditor and a subsequent purchaser, and also to foreclose his mortgage. Rector made no defense; but the other defendants alleged that the conveyances were made in good faith and upon a valuable consideration. They deny Rector's insolvency at the date of the transfer, or that he owed the plaintiff any debt, having, as they say, been imposed on and deceived by the plaintiff as to the present and prospective value of the block, whereby it was sold at a grossly exorbitant figure. They further deny that Rector had any estate in the land, or power to incumber it, at the time the mortgage was executed; and they assert that the land described in the mortgage is the same tract that was intended to be conveyed to Celine Rector; that the description of it in the deeds under which they claim follows the description contained in Rector's title-papers; and that, if there is any inaccuracy, it was the mistake of the draughtsman, there being no uncertainty about the tract that was meant, and Rector owning no other lands in that section. But they aver that the description is sufficiently certain to ascertain and identify the land. Their answer was made a cross-bill, in which it was prayed that the deeds might be reformed if the description was found to be inadequate. The court sustained a demurrer to so much of the answer and cross-bill as sought to reopen the question of Rector's indebtedness to Edgerton, holding that matter concluded by the judgment that Edgerton had recovered in the former suit; and the plaintiff answered the other allegations of the cross-bill. Depositions were taken, and at the hearing a decree was entered declaring the mortgage a lien superior to the rights of the defendants, and ordering its foreclosure.

It is irregular, and, according to some authorities, fruitless, to litigate in a foreclosure suit an adverse claim which is paramount to the title of the mortgagor. There is no privity between such an adverse claimant and the mortgagee. 2 Jones, Mortg. § 1440, and cases cited; Wiltsie, Mortgage Foreclosures, §§ 118, 119; Dial v. Reynolds, 96 U. S. 340; Peters v. Bowman, 98 U. S. 56.

Section 4940 of Mansfield's Digest authorizes any person to be made a defendant "who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the questions involved in the action." But the holder of an adverse title, prior to the...