Clark v. Lesser

• Decision Date: 20 January 1913
• Citation: 153 S.W. 112,106 Ark. 207
• Parties: CLARK v. LESSER
• Court: Arkansas Supreme Court

153 S.W. 112

106 Ark. 207

CLARK v. LESSER

Supreme Court of Arkansas

January 20, 1913

Appeal from Lee Chancery Court; Edward D. Robertson, Chancellor reversed.

STATEMENT BY THE COURT.

This suit is over an undivided one-half interest in and to the southeast quarter of the southeast quarter and the north half of the southwest quarter of the southeast quarter of section 22, township 2 north, range 1 east, in Lee County.

George Smith donated eighty acres, of which the land in controversy was a part, from the State of Arkansas on the 1st day of February, 1900, with the understanding that John Frank Clark who paid one-half of the donation fees, should have a half interest in the land. On the 29th day of March, 1899, Smith executed a deed of trust to one O. C. Sutton, trustee for M Lesser & Co., on his undivided one-half interest in the eighty acres in section 22. The deed of trust was to secure an indebtedness due October 22, 1900. The deed of trust was filed for record on the 29th day of March, 1899, and duly recorded.

On the 15th day of October, 1900, George Smith conveyed to John Frank Clark sixty acres of the eighty acres in section 22 supra. In September, 1906, Morris Lesser & Co. instituted a suit to foreclose the deed of trust, and in December following a decree of foreclosure was entered and the lands were sold thereunder and purchased by the appellee, Morris Lesser, who obtained his deed and filed the same for record on the 3d day of February, 1909.

On the 22d day of January, 1909, John Frank Clark conveyed the lands that had been conveyed to him by George Smith to appellant Westbrook, and the latter filed his deed for record on the 11th day of August, 1909. The deed from Smith to Clark was filed for record October 4, 1901. Clark was not made a party however to the foreclosure proceedings.

On the 25th day of October, 1909, appellee brought suit against John Frank Clark, Sandy Clark, Paul H. Westbrook and George Smith to quiet title and for partition of the land. A decree was entered at the December term, 1909, pro confesso against the defendants, John Frank Clark, Sandy Clark and George Smith. Appellant Westbrook answered, and made his answer a cross complaint, asking that his title be quieted. The decree was rendered against appellant quieting title in appellee Lesser and ordering a partition of the land. The appellants duly prosecute this appeal.

Judgment reversed and appellee's complaint dismissed.

Manning & Emerson, for appellant.

The foreclosure proceeding against Smith, and the decree, commissioner's deed, etc., are void as to the appellant Westbrook, for the reason that the deed of trust was barred by the statute of limitations, and Westbrook was not made a party to the proceeding. Kirby's Dig., § 5399; 61 Ark. 115; 66 Ark. 204; 67 Ark. 27; 70 Ark. 49; Id. 122; Id. 598; 64 Ark. 305; Id. 317; 74 Ark. 138; 68 Ark. 257-9; 91 Ark. 394-8, and cases cited.

The endorsement entered on the margin of the record is not a compliance with the statute.

C. E. Daggett and H. F. Roleson, for appellee.

1. The endorsement was sufficient. The statute is complied with when such memorandum is endorsed on the margin before the expiration of the mortgage lien as will notify third parties that the lien still exists, and the endorsement made in this case was sufficient for that purpose. Cases cited by appellant sustain the sufficiency of the endorsement. 68 Ark. 257; 91 Ark. 394-8. The question of limitation was not raised in the foreclosure suit, and can not be taken advantage of now. Even though Clark was not made a party to that suit, was it not incumbent on him to appear and plead the limitation, and, not having done so, are not he and Westbrook cut off from pleading limitation here by the decree in that suit? 77 Ark. 379.

2. The appeal is premature. 52 Ark. 224.

OPINION

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

The appellant set up in his answer and cross complaint that the deed of trust was barred by the statute of limitations before the foreclosure proceedings were instituted, and that inasmuch as the appellant was not made a party to those proceedings the same were void as to him, and that appellee did not acquire any title under such proceedings.

Upon the margin of the record of the deed of trust was the following endorsement: "There being a balance due on the within D/T of $ 118 this November 4, 1902. (Signed) M. Lesser & Co. Attest: F. H. Govan, Clerk."

As the deed of trust was due October 22, 1900, it was barred by the statute of limitations in September, 1906, when the suit to foreclose was instituted unless the above endorsement is sufficient to prevent the running of the statute. The statute is as follows: "In suits to foreclose mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given. Provided, when any payment is made on any such existing indebtedness, before the same is barred by the statute of limitation, such payment shall not operate to revive said debt or to extend the operations of the statute of limitations with reference thereto, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, endorse a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded, which endorsement shall be attested by the clerk." Kirby's Digest, § 5399.

In Hill v. Gregory, 64 Ark. 317, 42 S.W. 408 construing this statute, we said: "The statute in question is an act of limitation upon the rights of foreclosure of the mortgage, in effect making the mortgage subject to the same limitations as to time as is applicable to the evidence of the debt secured by the mortgage; and, further, the statute is applicable to mortgages with power of sale and deeds of trust, when sought to be foreclosed by trustee's sale; and, furthermore, when it appears affirmatively from the face of the mortgage that the debt is barred, and there are no marginal entries to take the debt out of the operation of the statute of limitation, the right to foreclose is then also barred,...