Cross v. Fombey

• Decision Date: 31 January 1891
• Citation: 15 S.W. 461,54 Ark. 179
• Parties: CROSS v. FOMBEY
• Court: Arkansas Supreme Court

15 S.W. 461

54 Ark. 179

CROSS v. FOMBEY

Supreme Court of Arkansas

January 31, 1891

APPEAL from Columbia Circuit Court, CHARLES W. SMITH, Judge.

Judgment affirmed.

B. F Askew and Sam W. Williams for appellant.

1. The title passed at once to the trustee without any act on his part, and courts of equity never permit a trust to fail for want of a trustee. 4 Ark. 302; 18 id., 65; 11 id., 94; 15 id., 60. Replevin was the proper remedy. Hill on Trustees, p 188; 36 Conn. 10; 5 Wait, Ac. & Def., 472; 40 Ark. 75; 35 id., 218.

2. While a deed of trust is like a mortgage in effect, it is not a mortgage within the provisions of sec. 4743 Mansf. Dig., as construed in 9 Ark. 112, but stands as at common law affecting all who have notice. 18 Ark. 65; 49 Ark. 63; 27 Ark. 61. A strict construction of the word mortgage will not take in a deed of trust. Endlich on Int. Stat., secs. 127, 128, 341, 343.

3. Possession before the writs were levied obviated the necessity of registration, and left nothing subject to levy. Freeman on Eq., sec. 195; 49 Ark. 279; 33 id., 329; 16 id., 543; 15 id., 73; 32 Ark. 478; 43 id., 504.

Smoote, McRae & Arnold, and J. M. Kelso for appellees.

1. The instrument relied on was a mortgage within the provisions of sec. 4743 Mansf. Dig., and note b; 18 Ark. 105-6; 31 id., 437.

2. Not being recorded, it was not effective against creditors. A writ of attachment binds the property of defendant from the time it comes to the hands of the officer. Mansf. Dig., sec. 325; 29 Ark. 85; 34 id., 339; ib., 97; 9 id., 112; 18 id., 105; 20 id., 191; 33 id., 87; 32 id., 453; 35 id., 67; 40 id., 537; 42 id., 140.

OPINION

HUGHES, J.

Appellant brought replevin for twelve bales of cotton and two hundred bushels of corn. Appellees answered that Fombey, as constable, and Sewell, as sheriff, of Columbia county, held the corn and cotton by virtue of certain writs of attachment placed in their hands in said county, which became liens on the same, and were levied thereon before the deed of trust under which appellant claimed was recorded. The evidence was substantially, that on the 14th day of March, 1888, Bailey Baker conveyed in trust to J. R. Owsley to secure certain indebtedness to A. J. Brewer, which was to become due January 1, 1889, certain land and twenty-five bales of lint cotton, to weigh 500 pounds each, to be raised on his place in Columbia county, Arkansas, and also all the cotton and corn which he might make or cause to be made that year in said county. Owsley refused to act as trustee, and appellant was appointed to act.

On the trial the appellant, Cross, proposed to testify that he took possession of the property before the defendants levied on it. Objection was made by appellees and the court sustained the objection, to which appellant excepted. The objection was properly sustained because "an order of attachment binds the defendant's property in the county, which might be seized under an execution against him, from the time of the delivery of the order to the sheriff or other officer," and not merely from the time of its levy. The lien upon the property is completed by execution of the order in the manner directed by the statute. Sec. 325, Mansf. Dig.

The appellant then offered to ask witness, J. M. Johnson, whether the cotton was turned over to him; if so, by whom and for what purpose and at what time it was turned over to him by Bailey Baker; and whether the same was turned over to him before the writs of attachment were issued; and whether this cotton turned over to him was the cotton described in the deed of trust; and what day the cotton was turned over to him by Bailey Baker for A. J. Brewer, the beneficiary in the trust deed. To all this an objection upon the part of appellees was sustained, to which appellant excepted. It is sufficient to say in reference to this, that there is no evidence that Johnson was the agent, or authorized to take possession of the cotton for Brewer or the trustee; and there is no evidence of notification to either of them of his taking possession of the cotton for him until after the orders of attachment came to the hands of the officers, and the liens thereof had attached.

The evidence for appellees identified the property as that levied upon, and showed that on the 6th of December, before appellant reached the place where the cotton was, the attachments had been levied upon it. On the 17th day of December, the day following the day on which the attachments were levied, the deed of trust conveying the property in controversy to appellant was filed for record.

The court refused to give to the jury, at the request of the appellant, the following instructions:

"2. If the jury believe from the evidence that the beneficiary in the mortgage, his agent or trustee, took possession of the property mentioned in the complaint before it was attached, for it or the proceeds thereof to be applied to the extinguishment of their debt, then they should find for the plaintiff.

"3. If the jury believe from the evidence that the mortgagor, Bailey Baker, delivered the cotton and corn, or any part thereof, mentioned in the complaint to J. M. Johnson to be delivered to A. J. Brewer, or his agent, in satisfaction of a debt then subsisting between the parties and secured by mortgage, and before the attachments were issued, then they should find for the plaintiff, at least to the extent of such delivery.

"4. If the jury believe from the evidence that A. J. Brewer had a valid mortgage or deed in trust against Bailey Baker, made in good faith and not satisfied or paid, on the property mentioned in the complaint, and that the plaintiff is trustee in said mortgage or deed in trust, they should find for the plaintiff, nevertheless the mortgage was not recorded until after the attachments were issued."

The court refused to give these instructions, or any of them, and plaintiff excepted. The defendant then asked the following instructions, which were given against plaintiff's objections, and exceptions were saved.

"1. The court instructs the jury for the defendant, that the trust deed, under which the plaintiff claims title as trustee herein, is, as to the cotton sued for, void for uncertainty, and as matter of law the plaintiff cannot recover said cotton in this action under said trust deed; and if they find from the evidence that the plaintiff, W. A. Cross, has no other title to said cotton, they will find for the defendants as to said cotton.

"2. The jury is further instructed that an order of attachment binds the property of the defendant, and constitutes an attachment lien thereon, from the time such order comes to the hands of the sheriff or other officer for execution, if same is afterwards levied; and if they find from the evidence that orders of attachments came to the hands of the officer for execution in actions in favor of Fombey & Co., J. E. Smith, J. G. Kelso and C. M. Fombey against Bailey Baker, before the trust deed under which plaintiff claims was filed for record, they will find for defendant for corn as well as for said cotton herein sued for, even if said orders or either of them were levied after the finding of said deed of trust for record."

There were a verdict and judgment for appellees, a motion for a new trial, saving all...