Clapp v. Halliday
| Decision Date | 29 January 1887 |
| Citation | 2 S.W. 853,48 Ark. 258 |
| Parties | CLAPP BROS. & CO. v. HALLIDAY BROS |
| Court | Arkansas Supreme Court |
APPEAL from Chicot Circuit Court, in Chancery, Hon. J. M. BRADLEY Judge.
Decree modified.
J. G B. Simms, for appellants.
1. Appellees' mortgage was void as to appellants, even with actual notice. (33 Ark. 203; 42 ib., 141; 22 ib., 136;) and it is no lien against them. 40 ib., 539.
Appellants did not assume to pay appellees' debt, but only intended to protect themselves, by providing that they should be allowed to retain the amount of appellees' debt, as against Baker & Carico, in addition to what they might owe appellants.
The curative act of 1883 can have no bearing upon this case since appellants' money was paid out upon the strength of the law as it then stood, and no subsequent act of the legislature can make good against them, that which was then void. Distinguishes 44 Ark. 473, from the present case.
D. H Reynolds, for appellees.
Appellees' mortgage was cured by acts of 1883; 43 Ark. 420; 44 ib., 365.
By accepting the mortgage with the provision in it for the benefit of appellees, appellants became liable to pay the amount due. 71 N.Y. 28.
Baker & Carico mortgaged the same growing crop of cotton, first to Halliday Brothers, and afterwards to Clapp Brothers & Co. The acknowledgment of the first mortgage was defective, the word "consideration" being omitted in the officer's certificate. But the second mortgage contained this clause of reference: "And we (Baker & Carico) do further agree, that, whereas, on the 21st day of June, 1880, we executed a mortgage to Messrs. Halliday Brothers, of Cario, Illinois, on the eighteen acres of cotton then being grown by us on the Leland plantation, in Chicot county, being the same eighteen acres heretofore conveyed to the said Clapp Brothers & Company, to secure to the said Halliday Brothers the payment of three hundred and fifteen dollars and fourteen cents, on the 10th day of December, 1880, now, the said Clapp Brothers & Company are hereby directed to charge to our account the said sum of $ 315.14, and out of the first moneys which may be passed to our credit with them, from any source whatever, to set aside said sum of $ 315.14, as an indemnity to them against said mortgage."
Clapp Brothers & Company brought replevin for the cotton after it had been gathered. Halliday Brothers intervened and claimed priority. The cause was transferred to equity without objection. There an amended interplea was filed, in which it was alleged that the plaintiffs had already received from Baker & Carico moneys, far in excess of the demand of the intervenors, and it was therefore sought to hold the...
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