Beloate v. New England Securities Co.

• Decision Date: 20 October 1924
• Docket Number: 177
• Citation: 265 S.W. 83,165 Ark. 571
• Parties: BELOATE v. NEW ENGLAND SECURITIES COMPANY
• Court: Arkansas Supreme Court

265 S.W. 83

165 Ark. 571

BELOATE v. NEW ENGLAND SECURITIES COMPANY

No. 177

Supreme Court of Arkansas

October 20, 1924

Appeal from Lawrence Chancery Court, Eastern District; Lyman F Reeder, Chancellor; affirmed.

Decree affirmed.

E. H Tharp, for appellant.

While the trustee in a mortgage is a necessary party, he cannot bring suit in his own name, but in his trust capacity. 44 Ark. 314. Suit must be brought by the owner of the indebtedness. 159 Ark. 231. A trustee cannot assume any right not given him by the grantor. 27 Ark. 122. The power of the trustee to act is limited by the deed itself. 31 Ark. 400. The reassignment after suit gave appellee no right either in the deed or note. 85 Ark. 246. The trustee could only bring action jointly with the owner of the note or foreclosed under the terms of the deed of trust, after being requested to do so by the holder of the note. 36 Ark. 17. Appellee was a volunteer in redeeming from the tax sale. One cannot make another his debtor without the latter's consent or request. 17 Wallace 166. The trustee could not recover judgment. 43 Ark. 521; 30 Ark. 600.

Ponder & Gibson, for appellee.

The suit was properly brought in the name of the trustee. The security company, although a proper party, was not a necessary party. C. & M. Dig., § 1092. See 30 Cyc. 85; 120 Wis. 405; 120 Ala. 449; 286 Ill. 606; 30 Ark. 249; 48 Ark. 355; 159 Ark. 231. Section 10100, C. & M. Digest affords authority to appellee for the redemption of the land from tax sale. Redemption laws will be liberally construed. 39 Ark. 580; 113 Ark. 497. Almost any right, either at law or equity, perfect or inchoate, in possession or in action, or whether a charge or incumbrance, amounts to such ownership as will entitle the party holding to redeem. 39 Ark. 580; 42 Ark. 215. See also 74 Ark. 393. Any person may redeem lands from tax sale without authority, but such redemption inures to the benefit of the owner. 65 Miss. 516. Even if appellee were a volunteer, the reassignment by Mrs. Cady operated as a ratification of the redemption.

OPINION

MCCULLOCH, C. J.

This is an action to foreclose a mortgage, or deed of trust, on real estate. The land in controversy was owned by T. J Draper and his wife, Anna, and on January 1, 1919, they borrowed the sum of $ 2,100 from appellee, New England Securities Company, and executed a note for the same, due and payable five years after date, with interest coupons payable annually. They also executed a deed of trust to appellee, T. C. Alexander. conveying the land in controversy, as security for the debt. Prior to the commencement of this action the Drapers sold and conveyed the land to appellant, W. E. Beloate, the latter assuming, as a part of the consideration for the conveyance, to pay off the mortgage. The action was instituted by the New England Securities Company and T. C. Alexander, trustee, against Beloate and the Drapers.

It is alleged in the complaint that the New England Securities Company is the owner of the note with interest coupons, that default had been made in paying some of the coupons when due, and that the lands in controversy had been sold for taxes and that the same had been redeemed by the New England Securities Company, the sum of $ 357.02 being paid out in effecting the redemption. The notes and deed of trust contained an accelerating clause providing that all of the debt should be declared due on default in the payment of any interest coupon.

On January 24, 1919, the New England Securities Company assigned the debt to Mrs. Mary E. Wells Cady, by indorsement and by a separate written assignment in which the assignor undertook to "look after the collection of the interest as it falls due, and the principal at maturity, and to remit same to keep insurance in force for and on behalf of the holder thereof according to the provisions of the deed of trust securing the bond; to make an annual examination of the taxbooks, and to report any delinquencies, and to advise the holder hereof of the status of the borrower and the condition of the security, whenever deemed necessary, hereby guaranteeing the deed of trust securing this bond to be a first and valid lien upon the premises described therein." Appellant Beloate filed an answer in which he denied that the New England Securities Company was the owner of the debt, and denied the right of the company to declare maturity of the same, or to pay the taxes on the land and assert a lien therefor, pleading that the New England Securities Company was a mere volunteer in the payment of the taxes. Thereafter, and before the trial of the cause, the New England Securities Company obtained a reassignment of the debt from Mrs. Cady. The instrument reassigning the debt was dated prior to the commencement...