Cooper v. Phillips

• Decision Date: 19 March 1923
• Docket Number: 232
• Citation: 249 S.W. 12,157 Ark. 525
• Parties: COOPER v. PHILLIPS
• Court: Arkansas Supreme Court

249 S.W. 12

157 Ark. 525

COOPER v. PHILLIPS

No. 232

Supreme Court of Arkansas

March 19, 1923

Appeal from Columbia Circuit Court; C. W. Smith, Judge; reversed.

Judgment reversed and cause remanded.

Henry Stevens, for appellant.

Court erred in permitting plaintiff, who alleged he was entitled to possession of lands, to amend by making trustee in the trust deed a party plaintiff, amendment being tantamount to a new suit. State v. Rottaken, 34 Ark. 157; Grace v. Neel, 41 Ark. 165; Hopkins v. Harper, 46 Ark. 251; Railway Co. v. State, 56 Ark. 155; Schiels v Dillard, 94 Ark. 277; Coleman v Floyd, 105 Ark. 300. Mortgage apparently barred by statute of limitations not admissible in evidence, same as unrecorded instrument. Morgan v. Kendricks, 91 Ark. 398; Hill v. Gregory, 64 Ark. 318. Peremptory instruction for plaintiff should not have been given.

McKay & Smith, for appellee.

An ejectment suit is a possessory action, and only the right to possession of the lands is involved. Richie v Johnson, 50 Ark. 551; Hill v. Plunkett, 41 Ark. 65. Legal title to lands was in trustee in deed of trust, and only equitable title in mortgager. Danenhauer v. Dawson, 65 Ark. 129; Turman v. Sanford, 69 Ark. 95; Trapnall v. State Bank, 18 Ark. 53; Perry County Bank v. Rankin, 73 Ark. 589; Foreman v. Halloway, 122 Ark. 341; Crittenden v. Johnson, 11 Ark. 94; Pope Heirs v. Boyd, 22 Ark. 535;. Mortgagor's deed conveying the lands to appellant, the mortgage being of record and the debt unpaid, only passed her equity of redemption. Peurcell v. Gann, 113 Ark. 332. When the mortgagee failed to pay overdue mortgage debt, the plaintiff and the trustee had the right to possession and could maintain ejectment against mortgagee. Fitzgerald v. Beebe, 7 Ark. 310. Owner of equity of redemption can't bring ejectment against mortgagee in possession after condition broken. Cohn v. Hoffman, 45 Ark. 376. Where equity of redemption conveyed to mortgagee, estates do not merge. 12 Cyc. 1381.

Henry Stevens, in reply.

Complaint shows Frank Phillips not in possession when suit was brought, and the testimony that he had never been. Cases cited by appellee in 7 and 45 Ark. not applicable. Neither is citation 27 Cyc., 1381. 27 Cyc., 1402, is controlling, the equity of redemption having been conveyed to the mortgagee in satisfaction of mortgage debt, and the trustee thereby eliminated.

OPINION

MCCULLOCH, C. J.

Appellee instituted this action at law against appellant to recover possession of a tract of farm land in Columbia County. Both parties claim title from a common source, and the facts, as they appear from the pleadings and proof, are undisputed.

The land in controversy was originally owned by Lizzie Rowe, who, on May 22, 1916, conveyed it by deed of trust to R. K. Mason, as trustee, to secure a debt to appellee in the sum of $ 360, evidenced by a promissory note of that date, due and payable on January 1, 1917, with interest.

Lizzie Rowe conveyed the land to appellant by warranty deed dated September 27, 1918, for a price, part of which was paid at the time of the conveyance and the remainder was to be subsequently paid. On January 26, 1920, Lizzie Rowe executed to appellee a warranty deed purporting to convey the land in controversy to appellee in satisfaction of the said mortgage debt to appellee and the further sum of $ 150, paid at the time of the conveyance, and appellant took possession of the land under his conveyance from Lizzie Rowe, and this action was instituted against him by appellee in November, 1920. Subsequently R. K. Mason, the trustee in the deed executed by Lizzie Rowe in May, 1916, was, on motion of appellee, joined as a plaintiff in the action. This was done over appellant's objection.

The complaint of appellee alleged that the conveyance of Lizzie Rowe to him on January 26, 1920, "was made and executed in settlement of the indebtedness shown by said deed of trust hereinbefore referred to." Upon the facts shown, the court gave a peremptory instruction in favor of appellee.

We are of the opinion that, without discussing the question of the correctness of the court's ruling in permitting Mason the trustee, to be made a party, the court erred in deciding in favor of appellee, and that the decision, upon the undisputed facts, should have been in favor of appellant. Appellee is not the legal owner of the land,...