Benedict v. Griffith
Decision Date | 08 November 1909 |
Citation | 122 S.W. 479,92 Ark. 195 |
Parties | BENEDICT v. GRIFFITH |
Court | Arkansas Supreme Court |
Appeal from Faulkner Chancery Court; Jeremiah G. Wallace Chancellor; affirmed.
Decree affirmed.
Will P Feazel, for appellant.
The purchaser took the land subject to whatever rights and equities an inspection of the deed would have shown to be in appellant. 18 Ark. 142; 37 Ark. 571; 43 Ark. 467. The plea of limitation is personal to the party entitled to claim it, and he may waive it if he wishes. 36 Ark. 491; 71 Ark. 407; 72 Am. St. R. 835. A third party cannot plead the defense of usury. 66 Ark. 124. Nor the statute of frauds. 71 Ark. 304 But the written promise by Griffith to pay the debt furnishes a new point from which the statute will run. 22 Ark. 217; 66 Ark. 464; 22 Ark. 290. When the debt is barred, the lien is also barred. 43 Ark. 467; 53 Ark. 358; 47 S.W. 812. Whatever will revive the debt will revive the lien. 141 U.S. 28; 82 Am. St. R. 871.
R. W Robins, for appellee, S. G. Smith.
When a written instrument is to be proved by parol testimony, no vague, uncertain recollection concerning its stipulations ought to supply the place of the instrument itself. 13 Ark 496; 1 Pet. 600; 81 Ark. 147; 108 N.C. 441. Appellant has failed to show that he is entitled to recover against Smith, whether the notes are barred by limitation or not. 21 Ark. 202; 84 Ark. 282. The plea of the statute of limitations is generally a personal privilege, but grantees, mortgagees, and others standing in the debtor's place are entitled to its advantages. Wood on Lim. § 41; 72 N.E. 846; 43 Cal. 185; 18 Cal. 482; 4 Ore. 105. Part payment by a co-debtor will not bind a joint debtor. 12 Ark. 762; 20 Ark. 172; Id. 293; 13 S.W. 583; 82 Am. Dec. 754; 61 Am. St. R. 927.
BATTLE, J. FRAUENTHAL, J., being disqualified, did not participate.
OPINION
This suit was instituted by H. H. Benedict against C. A. Griffith and S G. Smith in the Faulkner Chancery Court to foreclose a vendor's lien on certain lands. He alleged in his complaint that on the 26th day of February, 1895, he sold the lands to Griffith for the sum of $ 1,000, and that Griffith executed to him for the same his eight promissory notes, as follows: Six for $ 100 each, due and payable, respectively, on 15th day of November, 1895, 1896, 1897, 1898, 1899 and 1900, and two notes for $ 200 each, due and payable, respectively, on the 15th day of November, 1902 and 1904, all bearing interest at the rate of ten per cent. from date; that at the time of the sale he conveyed the lands to Griffith and retained in the deed a lien on the land for the payment of the purchase money; that Griffith, in November, 1902, paid $ 200 on the notes, and is indebted to him for the lands in the sum of $ 1,000 with ten per cent. per annum interest thereon from the 26th day of February, 1895, less the sum of $ 200; and that Griffith, in July, 1907, in a letter to him, acknowledged the justice and correctness of the foregoing claim. He asked for judgment against Griffith for the balance due on the notes, and that such judgment be declared a lien on the lands, and that it be foreclosed, and the lands sold to satisfy the same.
Griffith did not answer the complaint, but made default.
The defendant, Smith, answered and severally denied all the foregoing allegations, and alleged as follows: "The defendant C. A. Griffith was the owner of the lands described in plaintiff's complaint on February 3, 1902, and that he was and had been the owner thereof for more than seven years prior to that date, and the defendant C. A. Griffith continuously for more than seven years prior to February 3, 1902, and from and up until February 3, 1902, had been in the open, notorious and adverse possession of the lands described in the complaint, and during all that time claimed to own the same as his own, free from any lien of any kind; that the defendant Smith, on the 3d day of February, 1902, did believe and understand that C. A. Griffith was the owner of the land free from any liens or incumbrances of any kind, and, so believing, the defendant Smith did on February 3, 1902, purchase the land from C. A. Griffith together with other lands owned by Griffith, and on that day did pay Griffith therefor the sum of $ 3,500; and that for said sum on that day C. A. Griffith did bargain and sell the lands together with other lands to S. G. Smith, and on said day did execute to him a deed therefor, which deed was duly filed for record in the recorder's office of Faulkner County on February, 25, 1902.
The court, upon final hearing, found that Griffith is indebted to plaintiff, Benedict, in the sum of...
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