Craig v. Meriwether

• Decision Date: 11 November 1907
• Citation: 105 S.W. 585,84 Ark. 298
• Parties: CRAIG v. MERIWETHER
• Court: Arkansas Supreme Court

105 S.W. 585

84 Ark. 298

CRAIG v. MERIWETHER

Supreme Court of Arkansas

November 11, 1907

Appeal from Chicot Chancery Court; Emon O. Mahoney, Chancellor affirmed.

STATEMENT BY THE COURT.

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, Arkansas, 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 of 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, 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 non-residents 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 five thousand dollars, 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 ten 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.

Decree affirmed.

Murphy, Coleman & Lewis, for appellant, Norman.

The mortgagors, or their vendees, are entitled to redeem by paying the sale price with ten per cent. interest and costs. Kirby's Digest, § 5416; 57 Ark. 198; 65 Id. 392; 84 Ala. 289; 64 Id. 576; 65 Id. 229; 71 Id. 484; 31 Id. 429; 29 Id. 544; 74 Ala. 285; 11 Am. & Eng. Enc. Law (2 Ed.) 243.

The tender was sufficient. 28 Am. & Eng. Enc. Law (2 Ed.) 7, 38; 52 Ark. 146.

The sale by the trustee discharged the mortgage and extinguished the lien, and left nothing to foreclose in equity. 65 Ark. 132; 63 Id. 397; 69 Minn. 469; 72 N.W. 707; 26 Minn. 309; 137 Ill. 453; 60 Iowa 532; 2 Jones on Mortg. (6 Ed.) § 1876; 106 Ala. 417; 17 So. 623; 66 Ark. 573; 65 Id. 129; 47 Mich. 385; 17 Col. 492; 31 Am. St. 328; 81 Ill. 436; 10 Minn. 379.

Plaintiffs are estopped, and can not pursue inconsistent remedies, or disaffirm to the prejudice of another that which they have affirmed. 53 Mich. 146; 71 Ark. 209; 78 Id. 501.

Nor can they take advantage of want of appraisement. 71 Ark. 209; Willsie on Mortg. Forecl. p. 660; 40 Ark. 275; 108 N.C. 456; 24 Miss. 681; 122 Ga. 178-181; 187 Mo. 613; 91 Ala. 334; 64 Minn. 190; 8 Id. 338.

Even though the deed to plaintiffs may have been void, this sate by their agent was valid, and vested in them the equitable title. 71 Ark. 484. But the validity of the deed is immaterial. 57 Ark. 198. A tender prevents the passing of the title.

Where a vendor takes a mortgage upon land sold, he waives the equitable lien. 33 Ark. 63. An express lien is waived by foreclosure. 60 Iowa 532.

W. S. McCain, for appellant, Craig.

1. The waiver of the right to redeem must be construed to refer only to a foreclosure sale under a decree of a court. The statute allows this right to be waived only when the sale is by judicial foreclosure. Kirby's Digest, § 5420; Acts 1879, p. 94; Acts 1883, p. 157; 49 Penn. St. 387; 28 Ark. 491; 36 Id. 55; 2 Freeman on Ex. § 216; 72 Am. Dec. 741 and notes.

2. The right to redeem land is a valuable property right and the subject of alienation. 4 Kent, Com. p. 441; 73 Iowa 446; 2 Freem. on Ex. § 317; 57 Iowa 110; 9 Hump. 726; 49 Ark. 551; 82 Iowa 1.

3. Even though the sale by Chapman was a nullity for want of power and appraisement, plaintiffs can not take advantage of their own wrong. The statute was for the protection of the mortgagors, and they do not complain. 47 Ark. 309; 40 Kan. 224; Freeman on Ex. § 284; 17 La.Ann. 91; 40 Ark. 275; 58 Id. 556; 64 Id. 213. Nor can they occupy inconsistent positions. 50 Ark. 204; 53 Id. 514; 70 Id. 457. See also 102 U.S. 415; 36 Ark. 248; 76 Id. 577; 77 Id. 109; 64 Id. 639.

4. Craig and Norman were innocent purchasers. A redemption from a mortgage foreclosure sale relieves the land from the sale and any further lien. 65 Ark. 392; 1 Jones on Mortg. § 1051c; 2 Freeman on Executions, § 317; 54 Ark. 153; 2 Pom. Eq. 776, On the doctrine of estoppel, see Ib. § 804-811; 29 Ark. 223; 37 Id. 53; 33 Id. 468.

5. No written authority necessary where mortgagee buys at his own or agent's sale. 55 Ark. 272.

T. M. Hooker, June P. Wooten and Baldy Vinson, for appellees.

1. Where there is no valid appraisement, the sale is absolutely void. 55 Ark. 268; 21 S.W. 469; 70 Ark. 490; Ib. 309. An agent can not sell without an instrument of writing of as high dignity as a deed or conveyance. 71 Ark. 486; Kirby's Digest, §§ 753, 3666; 55 Ark. 326. Status of mortgagee under void sale unchanged. 55 Ark. 236; 7 L. R. An. 273. If sale void, no estoppel. 69 L. R. An. 143; Bigelow on Estop. 338; 53 Ark. 359; 100 U.S. 564; 125 Mass. 469; 140 Id. 63; 25 Minn. 305; S. & W. Trial of Title to Land, § 843; Bisph. on Eq. §§ 282, 288-9, 290, etc.; Freeman, Void Judicial Sales, § 48.

2. A deed to third parties from mortgagor, after condition broken and sale under a power, does not carry the right of redemption. Section 5111, Sand. & Hill's Digest; 70 Ala. 58; 54 Ala. 317; 46 Miss. 13; 3 Pick. 492; 2 Met. 29; 17 Ohio 482. The right of redemption is purely a statutory one; a privilege only to the mortgagor. 54 Ala. 317; 74 Id. 285; 84 Id. 298; 132 Id. 657; 57 Iowa 110; 21 Ark. 319; 52 Id. 132; 49 Id. 551; 43 Id. 54; 44 Id. 17; 41 Id. 436; 112 U.S. 609; 28 L. R. A. 837; 49 Ark. 325; 60 Ala. 243; 70 Id. 46; 2 Freeman on Ex. § 317. See also 57 Ark. 201; 66 Id. 141; 21 Id. 319; 65 Id. 129; 43 Id. 54; 67 Tex. 542; 123 Mass. 519. The privilege not transferable. 44 Ark. 17; 41 Id. 436; 49 Id. 325; 112 U.S. 603.

3. The statutory right of redemption may be waived, being only a privilege. 21 Ark. 105; Ib. 319; 52 Id. 132; 65 Id. 129; 47 Minn. 434.

4. There was no legal tender, 53 Minn. 23; 50 N. Y. (5 Sickels), 550. The full amount should have been tendered, without conditions. Hunt on Tender, §§ 186, 337; 26 Iowa 114; 3 Strobh. 25; 83 Mich. 301; 53 Minn. 23; 4 Wis. 329; 33 Me. 67; Jones on Mortgages, §§ 896, 958; 65 Ark. 392.

5. He who asks equity must do equity. 116 N.C. 1; 33 L. R. An. 231, 235.

R. E. Craig, pro se, in reply.

Ignorance can not be heard in equity. Plaintiffs estopped, (1) by inconsistent attitude (32 Ark. 345; 36 Id. 96; 35 Id. 376; 1 Am. St. 628, note; 59 Id. 434; Bigelow on Estop. 548); (2) by election (15 Cyc. 262-VII; 84 Am, St. 937; 35 Id. 17); (3) by estoppel in pais (16 Cyc. 785 B; 9 Am. St. 587; 5 Id. 285; 32 Id. 784)

OPINION

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

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...