Armistead v. Bishop
| Citation | 161 S.W. 182,110 Ark. 172 |
| Parties | ARMISTEAD v. BISHOP |
| Decision Date | 17 November 1913 |
| Court | Supreme Court of Arkansas |
Appeal from St. Francis Chancery Court; Edward D. Robertson Chancellor; affirmed.
Decree affirmed.
Allen Hughes, for appellant.
A mortgagee in possession must account for rents, not only to the mortgagor, but also to judgment-creditors and subsequent mortgagees. 27 Cyc. 1252; 42 N.J.Eq. 297, 10 A. 880; 20 Conn 427; 75 Ia. 368; 25 A. 512; 41 N.J.Eq. 311; 7 B. Mon. (Ky.) 66; 49 Ark. 508; 3 Pomeroy's Eq., § 121.
By statute, appellant's claim having been allowed and entered in the probate court, it has the same force and effect as a judgment. Kirby's Dig., § 125. And appellant is such a creditor as can compel an accounting.
A. B Shafer, for appellee.
Since the land was a homestead, the minor heir alone had the right to the rents and profits until she reach her majority, and they were not subject to the debts of the estate. Kirby's Dig., §§ 3882, 3883; 29 Ark. 633-636; 37 Ark. 316; 61 Ark. 26.
OPINION
Appellee, G. R. Bishop, instituted this action in the chancery court of St. Francis County to foreclose a mortgage or deed of trust on lands in that county executed by one William Civils, to secure a debt in the sum of $ 900, evidenced by note payable five years after date, with interest.
The mortgagor, Civils, died, unmarried and intestate, a short time after the execution of the mortgage, leaving his daughter, Pearl Civils, as his only heir at law, she being a minor at that time. An administrator, was appointed, and the administrator, and heir were both joined as defendants in this suit.
Appellant is mortgagee under a junior mortgage, and was made a party to the suit at his own request.
The original defendants made no defense in the action, and the controversy is entirely between the two mortgagees.
The case was tried upon an agreed statement of facts, from which it appears that shortly after the death of Civils, the mortgagor, appellee entered into possession of the lands by express agreement with the administrator that he was to occupy and cultivate the same as tenant, and pay a certain stipulated rent. For the first two years of this tenancy appellee was to pay one-half of the stipulated rent to the administrator, and the other half was to be credited on the mortgage debt, which was done. For the next two years, which completed the term of his tenancy and ran up to the time of the commencement of this suit, he was to pay a stipulated rent, all of which was paid to the administrator and to Pearl Civils, the heir.
The controversy between the two mortgagees arose over the application of the rents, it being contended on behalf of appellant as junior mortgagee, that appellee should be treated as a mortgagee in possession and held accountable for the rental value of the lands during the years he occupied the same, except as to the amount paid by him to Pearl Civils, the heir of the mortgagor.
It is admitted that the lands constituted the homestead of the mortgagor, William Civils. Therefore the administrator was not entitled to possession. The heir was entitled to possession until foreclosure, or until one of the mortgagees sought possession for the purpose of subjecting the rents and profits to the payment of his mortgage debt.
It may be conceded, for the purposes of this case, without deciding it, however, that a junior mortgagee, where the mortgagor is insolvent and the mortgaged property is insufficient to pay off both debts, can hold the senior mortgagee in possession accountable for the rents and profits received by the latter. The cases cited on the brief seem to sustain that view.
It is, however, essential, before there is an accountability as mortgagee in possession, that the possession must be taken under and by reason of the mortgage, or under such circumstances as would justify a court in treating the possession as being under the mortgage.
In speaking on this subject, Professor Pomeroy said:
"In...
To continue reading
Request your trial