Coco v. Miller

• Decision Date: 19 April 1937
• Docket Number: 4-4619
• Citation: 104 S.W.2d 209,193 Ark. 999
• Parties: COCO v. MILLER
• Court: Arkansas Supreme Court

104 S.W.2d 209

193 Ark. 999

COCO v. MILLER

4-4619

Supreme Court of Arkansas

April 19, 1937

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor affirmed.

Decree affirmed.

W. G Dinning, for appellant.

John C Sheffield and C. L. Polk, Jr., for appellee.

OPINION

BUTLER, J.

On May 1, 1925, appellee's intestate, by deed of that date conveyed certain real property to Josephine Coco for a consideration of $ 4,000, of which the sum of $ 750 was paid in cash, and the balance evidenced by six promissory notes maturing on the first days of May, 1926, to 1931, both inclusive. In the deed, a special vendor's lien was retained to secure the payment of the balance of the purchase price evidenced by the notes, and, to further secure them, the said Josephine Coco executed a deed of trust on the same date covering the lands purchased and described in the deed.

On January 19, 1933, the said Josephine Coco, being indebted to the appellant, Sam St. Columbia, in a sum evidenced by a series of promissory notes, for the purpose of securing their payment, executed her deed of trust conveying the property purchased from appellee's intestate.

The deed and the two deeds of trust above mentioned were duly filed for record on or about the dates of their execution and are now properly recorded. Some of the notes secured by deed of trust executed to appellee's intestate were paid and the interest on the remaining notes was paid over a period from May 10, 1928, to March 15, 1936, such interest payments being made each year between March 15th and May 10. The last payment prior to February 15, 1935, was made on May 20, 1934. Subsequent to that date, one other payment was made on October 9, 1935, which was followed by three other payments in that year, and three in the year, 1936. None of these payments, however, was indorsed upon the margin of the record of the deed or deed of trust.

On July 5, 1936, appellee instituted suit to recover judgment for the remainder of the indebtedness due and for foreclosure of the lien. Joined with Josephine Coco as defendants were the Interstate Grocery Company, her judgment creditor, and Sam St. Columbia for the purpose of having their several liens adjudged inferior to that of appellee. A lis pendens notice was filed and Sam St. Columbia answered defending on the ground that the action was barred as to him because of failure to indorse the payments on the margin of the record as required by § 7408, Crawford & Moses' Digest, as amended by act No. 36 of the Acts of 1935.

The facts in the case were agreed to, and, upon a consideration of these, the trial court found in favor of appellee, from which decree this appeal is prosecuted.

The statute involved was approved May 10, 1911, and provides, among other things, that, where a payment is made upon an existing indebtedness secured by mortgages or deeds of trust, and before the same is barred by the statute of limitation, such payment shall not operate to revive the debt or extend the operation of the statute of limitation as to it, so far as the same affects third parties, unless there shall have been indorsed, by the mortgagee, trustee or beneficiary, prior to the expiration of the period of the statute, a memorandum of such payment with the date thereof on the margin of the record where the instrument is recorded. Act No. 36, supra, re-enacted § 7408, and amended it so as to require the indorsement of payments upon a deed retaining a vendor's lien. Prior to the enactment of the act, supra, the statute (§ 7408) had no application to the enforcement of vendor's liens. In the case of Elk Horn Bank & Trust Co. v. Spraggins, 182 Ark. 27, 30 S.W.2d 858, it was held, quoting headnote: "The statute providing for a period of limitation for enforcement of mortgages does not affect holders of vendor's lien * * *." Act No. 36 was approved February 15, 1935, and became immediately operative by virtue of the emergency clause, but before the passage of that act a payment had been made which tolled the statute and served to revive the debt for a further period of five years. That payment was made May 20, 1934. Therefore, at the time of the passage of act No. 36, the debt was a valid and subsisting one which would not be barred as to the vendor's lien until five years after said date, but for act No. 36, supra.

Appellants are uncertain whether suit was brought to enforce the vendor's lien or to foreclose on the deed of trust. It appears from the decree that both instruments were introduced and appellee might well have brought suit on either, or on both. However, when the complaint is considered in connection with the instrument exhibited as a basis for the action, it is apparent that the suit was in fact brought to foreclose the vendor's lien, for it was the instrument reserving said lien which was exhibited and made a part of the complaint although it seems to have been erroneously headed, "Copy of Deed of Trust."

Clearly, before the passage of act No. 36 appellants would have had no defense to this action, it being one to foreclose a vendor's lien. If...