Davis v. Murphy

• Decision Date: 07 May 1928
• Docket Number: 430
• Citation: 5 S.W.2d 936,177 Ark. 183
• Parties: DAVIS v. MURPHY
• Court: Arkansas Supreme Court

5 S.W.2d 936

177 Ark. 183

DAVIS v. MURPHY

No. 430

Supreme Court of Arkansas

May 7, 1928

Appeal from Union Chancery Court, Second Division; George M. LeCroy Chancellor; affirmed.

Affirmed.

Pat McNally and Jordan Sellers, for appellant.

Mahony Yocum & Saye, for appellee.

OPINION

HUMPHREYS, J.

This suit was brought by appellee against appellants in the chancery court of Union County to recover $ 2,125.60, including interest, evidenced by a promissory note for $ 1,650 dated August 19, 1922, and to foreclose a mortgage of even date therewith on an eighty-acre tract of land in said county by appellants to appellee to secure same.

Appellants filed an answer, alleging that the note and mortgage were executed and delivered on Sunday, August 20, 1922, and that the note was executed by J. A. Davis, one of the appellants, as surety merely, and the mortgage executed by both appellants as security for the note, neither of them having received any consideration therefor.

The cause was submitted upon the pleadings and testimony adduced, resulting in a judgment against appellant J. A. Davis for $ 2,125.60, the foreclosure of the mortgage lien, and an order of sale of the lands to satisfy the judgment, from which is this appeal.

The facts are undisputed. In June or July, 1922, E. E. Davis was desirous of obtaining a loan of $ 1,650, and his father, J A. Davis, agreed to sign his note for that amount and to execute a mortgage on eighty acres of land in Union County to secure same. E. E. Davis arranged to get the money from appellee, but did not inform his father with whom he was negotiating, nor did he inform appellee that he was securing the loan by mortgage upon his father's land. On Sunday, August 20, 1922, by arrangement over the telephone, E. E. Davis, J. A. Davis, J. W. Foster and Mattie M. Davis met, either at the home of E. E. Davis or of a justice of the peace by the name of W. R. Pickering, to execute a note and to secure same by mortgage on an eighty-acre tract of land in said county belonging to J. A. Davis. A question was raised about the legality of papers executed on Sunday, so the parties present agreed among themselves to date the note and mortgage on Saturday, August 19, instead of August 20. This was done, and, after the note and mortgage were executed, they were turned over by the justice of the peace to E. E. Davis, the principal in the note. Appellee, the payee in the note and the grantee in the mortgage, was not informed that they were executed on Sunday, and never received information to that effect until appellants filed their answer to his foreclosure suit. On Monday morning, August 21, 1922, E. E. Davis presented the note and mortgage to appellee and received the consideration in money expressed therein. There were no negotiations between appellants and appellee...