Bonham v. Johnson
| Decision Date | 27 March 1911 |
| Citation | 136 S.W. 191,98 Ark. 459 |
| Parties | BONHAM v. JOHNSON |
| Court | Arkansas Supreme Court |
Appeal from Logan Chancery Court; J. V. Bourland, Chancellor reversed.
Decree reversed.
Anthony Hall, for appellant.
The findings of the chancellor are clearly not supported by the evidence.
The insurance money could not be applied on any other debt than the two notes due. The two debts and mortgages were separate and distinct, and the chancellor erred in applying the $ 1,000 to the payment of the notes sued on.
Robert J. White, for appellee.
1. The findings of the chancellor are sustained by the proof. If so the payment must be applied to the debts due in exclusion of those not due, whether there was any appropriation by the payee or not. 44 Ark. 90; 54 Id. 444; 30 Cyc. 1237; 47 Ark. 111.
2. In the absence of any appropriation at all by either party, the law would apply the payment to the debts first falling due. 34 Ark. 285. But, there being only one debt, the payment must be applied to discharge the several items or notes in the order of their priority, and Bonham had no right of appropriation. 57 Ark. 595.
Appellant, R. A. Bonham, sold and conveyed to appellee, Thos. J. Johnson, and to George and John Reams, ten acres of land and a cotton gin and mill plant at Blaine, Oklahoma, for the price of $ 3,000, evidenced by two notes for $ 500 each, due and payable on November 15, 1907, and January 1, 1908, respectively, and two notes for $ 1,000 each, due and payable December 1, 1908, and December 1, 1909, respectively. The first two notes were secured by a mortgage executed by appellee Johnson and his wife on a tract of land in Logan County, Arkansas, and a team of mules and a surrey. The other two notes were secured by a mortgage on the property in Oklahoma which was the subject-matter of the sale. The last-mentioned mortgage provided that the mortgagors should keep the gin and mill plant insured in the sum of $ 2,000 payable, in case of loss by fire, to appellant as his interest should appear. The property was insured, and was destroyed by fire in November, 1908, before anything was paid on the notes. A settlement was made with the insurance company for $ 1,806, and this sum was paid over to appellant, and was by him, after deducting $ 100, which he had paid out on insurance premiums, credited on the two notes secured by the mortgage on the Oklahoma property.
Appellant instituted this action in the chancery court of Logan County against appellee, Johnson, and wife to foreclose the mortgage securing the two notes for $ 500 each.
Appellee defended below on the ground that, about the time the insurance money was ready to be paid over, appellant entered into an agreement with him to accept the insurance money and a reconveyance of the Oklahoma land and the old engine and boiler in satisfaction of all the notes and also to pay a debt of $ 150 which said appellee owed Speer Hardware Company, of Fort Smith, Ark.
The chancellor decided that the alleged agreement between appellant and appellee for satisfaction of said notes was within the statute of frauds and void, but that appellant accepted the insurance money pursuant to said...
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