Bluff City Lumber Co. v. Bloom

• Decision Date: 11 December 1897
• Citation: 43 S.W. 503,64 Ark. 492
• Parties: BLUFF CITY LUMBER COMPANY v. BLOOM
• Court: Arkansas Supreme Court

43 S.W. 503

64 Ark. 492

BLUFF CITY LUMBER COMPANY v. BLOOM

Supreme Court of Arkansas

December 11, 1897

Appeal from Jefferson Chancery Court, JAMES F. ROBINSON, Chancellor.

STATEMENT BY THE COURT.

In 1892 James Floyd was the owner of a lot in Taylor's addition to the city of Pine Bluff. In that year he became indebted to the Bluff City Lumber Company for materials furnished him by said company towards the erection of a building upon said lot; and on the 14th day of May, 1892, said company duly filed, its lien for the price of said materials, in manner as provided by statute. Afterwards, while said lien existed Floyd mortgaged the lot to appellee, Bloomah J. Bloom, to secure payment of $ 300, borrowed money, which is still due and unpaid. At the time the lien for price of materials was filed, and at the time this mortgage was executed, the lot with improvements thereon, was the homestead of Floyd. His wife, Esther Floyd, relinquished her right of dower in said land to the mortgagee, but did not join in the granting part of the deed. After this mortgage was executed and recorded the Bluff City Lumber Company brought suit against Floyd, in the Jefferson circuit court, to enforce its lien for materials furnished, and recovered a judgment for the sum of $ 197.87, and condemning the property to be sold.

The lot was sold under an execution upon the judgment, and purchased by the company for the amount of its judgment and in satisfaction of the stone. At the expiration of one year from the date of the sale, the land being unredeemed, the sheriff of Jefferson county executed and delivered a deed conveying the lot to said company. The appellee, Bloom, was not made a party to this action enforcing a lien for materials furnished. After the year for redemption had expired, she, in January, 1895, tendered to said company the full amount of the price paid by the company for the land at the sale under the execution, together with penalty, interest, and costs which tender was refused. Shortly afterwards she brought this action in the Jefferson chancery court, asking to be allowed to redeem the land from the sale under the judgment aforesaid, and to foreclose her mortgage. Her right to redeem was denied and resisted by the appellant company. The chancellor held that, under the facts stated, she was entitled to redeem, and to enforce her mortgage against the land, and decreed accordingly.

Judgment reversed.

Bridges & Wooldridge, for appellants.

A mortgage of a homestead in which the wife of the grantor does not join in the granting clause is void, and the mortgagee is not a necessary party to a proceeding to foreclose a prior lien. 57 Ark. 242. An act of the legislature, passed after rendition of the decree of foreclosure, curing the defect in the mortgage above referred to, cannot do more than give the mortgagee the mortgagor's right to redeem in one year. 128 N.Y. 190; 52 Kas. 494; 15 Am. & Eng. Enc. Law, 9; 68 Cal. 262; 56 Ark. 217; 52 Kas. 424; 163 U.S. 118; 8 Wheat. 75; 5.4 Ark. 81.

Austin & Taylor, for appellee.

Floyd and wife waived their homestead rights in the property. They had this right. 55 Ark. 139. The judgment foreclosing the lien of appellants does not bind appellee, because she was not made a party. Sand. & H. Dig., § 4741; 33 Ark. 119; Pomeroy's Eq. Jur. § 1376. The act of 1893 cures the alleged defect in the mortgage. The delay in this case was not the fault of appellee, but of appellants.

RIDDICK, J. HUGHES, J., did not participate in the decision of this case.

OPINION

RIDDICK, J., (after stating the facts.)

The question in this case concerns the right of the appellee, Bloomah J. Bloom. to redeem land of one James S. Floyd, sold under an execution upon a judgment against him in favor of the appellant, the Bluff City Lumber Company. The judgment was recovered against Floyd in a proceeding begun by said company to enforce a lien for materials furnished by it to Floyd for the erection of a house upon the land sought to be redeemed.

Appellee bases her right to redeem upon a mortgage executed by Floyd to her after the lien for materials furnished had attached in favor of the appellant company. Now, as her mortgage was executed and recorded before the commencement of the action of the lumber company against Floyd, if such mortgage had been valid, she would have been a...