Craig v. Meriwether

• Citation: 105 S.W. 585
• Parties: CRAIG et al. v. MERIWETHER et al.
• Decision Date: 11 November 1907
• Court: Supreme Court of Arkansas

105 S.W. 585

CRAIG et al. v. MERIWETHER et al.

Supreme Court of Arkansas.

November 11, 1907.

Appeal from Chicot Chancery Court; E. O. Mahoney, Chancellor.

Suit by Hunter M. Meriwether and others against Robert E. Craig and others to foreclose a mortgage. From a decree for complainants, defendants appeal. Affirmed.

On January 2, 1903, Hunter M. Meriwether and his two brothers, John W. and Gilmer Meriwether, sold and conveyed to J. C. Law and J. B. Bunn certain lands in Chicot county, Ark., for the sum and price of $19,200, which was not paid, but was evidenced by five promissory notes executed by Law and Bunn to said grantors. To secure the payment of these notes Law and Bunn executed to the Meriwethers a mortgage on said lands. The mortgage provided, among other things, that if default should be made in the payment of the notes at maturity, or if any interest payment when due, or of any taxes due on said land, the entire indebtedness should immediately become due and payable at the option of the mortgagees, in which event the mortgagees, or their agent or attorney, were authorized to foreclose the mortgage, by a public sale of the lands to the highest bidder for cash. Default was made in the payment of the first installment of interest, due January 1, 1904, and taxes on the land, whereupon the mortgagees immediately declared the whole debt due and executed a written power of attorney to Johnson Chapman to sell the lands, as provided in the mortgage. At a sale of the lands on the 23d day of May, 1904, they were bid in by the mortgagees for $5,500, and a deed was a few days later executed to them by said Chapman and filed for record. No appraisement of the lands was made, and, as is shown in the agreed statement of facts, the Meriwethers were nonresidents of the state and were not aware that appraisement had not been made, nor that the law of the state required mortgaged property to be appraised before sale. They were not present at the sale, but the lands were bid in for them by another person according to instructions. The deed of Chapman to the Meriwethers is silent as to appraisement of the land. The Meriwethers credited the notes with the sum bid at the sale of the land, and thereafter, on August 5, 1904, brought an action in the circuit court of Ashley county, where Law and Bunn resided, against them, to recover the balance on the notes. Afterwards Law and Bunn sold and conveyed their interest in said lands to R. E. Craig and J. C. Norman by deed reciting a consideration of $5,000, and within a year from date of the foreclosure sale by Chapman they (Craig and Norman) tendered to the Meriwethers the sum of $5,500, with costs of sale and 10 per cent. interest from date of sale, for the purpose of redeeming the lands from the sale. Craig and Norman are both attorneys at law, and at the time of these transactions Norman was attorney for Law and Bunn in relation thereto and Craig was general attorney for Law. The Meriwethers declined the tender, and, after being advised by their attorneys in this state that the foreclosure sale was void on account of the failure to have the land appraised before sale, they dismissed their suit at law against Law and Bunn on the notes and instituted this suit in the chancery court of Chicot county against Law and Bunn to foreclose the mortgage. Craig and Norman were also made defendants upon an allegation in the complaint that they claimed an interest in the land. Law and Bunn filed an answer disclaiming any further interest in the land, and Craig and Norman answered, setting forth the sale by Chapman under the power in the mortgage, the purchase by the Meriwethers at said sale, the conveyance of Law and Bunn to them, and their offer to redeem from the foreclosure sale. They offered to make their tender good by bringing the money into court. On final hearing of the case the chancellor held that the failure to appraise the lands before the foreclosure sale by Chapman rendered the sale invalid, and that the plaintiffs were entitled to foreclose in equity. A decree was rendered against Law and Bunn for the full amount of the notes, with interest, and a sale of the lands by commissioner to pay the amount of the decree was ordered in accordance with the usual practice in such cases. All the defendants have appealed.

Murphy, Coleman & Lewis for appellant Norman. W. S. McCain for appellant Craig. R. E. Craig, pro se. T. M. Hooker, Jurie P. Wooten, and Baldy Vinson, for appellees.

McCULLOCH, J. (after stating the facts as above).

Many questions are ably argued by counsel as to the validity of the tender said to have been made to the Meriwethers to redeem from the foreclosure sale, the right of the mortgagors to assign their statutory right or privilege of redemption after sale, whether it is merely a personal privilege, and not assignable, and whether or not the mortgagors were bound by the clause in the mortgage waiving their statutory right of redemption after sale; but the conclusion which we have reached renders it unnecessary for us to discuss these questions. The case is disposed of on other grounds.

The statute governing the foreclosure of mortgages declares that, "at all sales of personal and real property under mortgages and deeds of trust in this state, such property shall not sell for less than two-thirds of the appraised value thereof: provided, if the property shall not sell at first offering for two-thirds of the amount of the appraisement, then * * * in case of real property another offering may be made in twelve months thereafter, at which offering the sale shall be to the highest bidder without reference to the appraisement." Kirby's Dig. § 5416. The statute also prescribes that, "when such sales are to be made, the mortgagee, trustee or other person authorized to make the same shall, before the day fixed therefor, apply to some justice of the peace of the county in which the property is held or situated for the appointment of appraisers." Kirby's Dig. § 5417. These provisions of the statute were not complied with. No attempt...