Deisch v. Moore

• Decision Date: 16 January 1911
• Citation: 133 S.W. 1035,97 Ark. 262
• Parties: DEISCH v. MOORE
• Court: Arkansas Supreme Court

133 S.W. 1035

97 Ark. 262

DEISCH v. MOORE

Supreme Court of Arkansas

January 16, 1911

Appeal from Phillips Chancery Court; Edward D. Robertson Chancellor; affirmed.

Judgment affirmed.

Fink & Dinning, for appellants.

1. The purchaser at a foreclosure sale under the powers contained in the deed of trust is entitled to the possession of the land during the year allowed by law for the redemption, and also to the rents and profits arising from same during that period. 66 Ark. 572; 65 Ark. 129; 92 Ark. 315.

2. The agreement executed by Peter Deisch does not have the effect to take this case out the rule above stated, because (a) there is no consideration for its execution expressed therein, nor shown in evidence aliunde; (b) it was an undertaking by him as executor, and he is suing in his individual capacity; (c) it is not signed by four of the appellants, two of whom are minors, whose interests it cannot affect.

R. W Nicholls and Moore & Vineyard, for appellee.

1. Under the facts in this case appellants could not have maintained an action for unlawful detainer; and if they could not have maintained that action, they cannot maintain this action for rent. 33 Ark. 682; 44 Ark. 444.

2. One who purchases at a sale under a mortgage is not entitled to recover from the mortgagor the possession of the rents and profits accrued during the year allowed for redemption where he gave the mortgagor no notice to quit and made no demand for rents and profits. 68 Ark. 586; 36 Ark. 29; 127 U.S. 494; 65 Ark. 134; McAdams on Landlord & Tenant, 41.

3. Appellants cannot evade the force and effect of the agreement signed by Peter Deisch not to take steps to dispossess Eugenia Bentley before January 1, 1910, by saying that subsequently to its execution the land was sold under the powers contained in the deed of trust, and purchased by them. They were chargeable under the law with notice as to how she and her tenants held the property. 68 Ark. 586.

OPINION

KIRBY, J.

This suit was brought by appellants to collect $ 440.50 claimed to be due for rent of certain lands in Phillips County described in the complaint.

It was alleged that they became the owners of the lands on 31st day of May, 1909, having purchased them at the trustee's sale under a deed of trust executed by Robert and Eugenia Bentley to secure an indebtedness to Peter Mengoz; that appellees, Eugenia Bentley and Moore Bros., with full knowledge of their title and rights, received various amounts of cotton from tenants on said lands upon which appellant claimed a lien for rent for the year 1909, and converted same to their use. Appellees denied appellants' possession or right thereto before January 1, 1910, that appellants had a lien upon the crops grown upon the lands in 1909, that any rents were due them and any indebtedness whatever to appellants; alleged that Eugenia Bentley was the widow of Robert Bentley, who died intestate and without children December 16, 1907, and continued to occupy the lands as a homestead after his death, and in the early part of January, 1909, rented them out to the several tenants, taking rent notes therefor; that she was unable to procure supplies for her tenants unless C. L. Moore & Bros., to whom she applied, were assured that her possession would not be interfered with before January 1, 1910, by reason of proceedings to collect the past due indebtedness secured by said deed of trust; that she procured from appellant Peter Diesch, who was executor of the estate of said Peter Mengoz, on February 18, 1909, in consideration of her payment of the taxes, an agreement to take no steps to dispossess her from the lands before January 1, 1910, which she presented to Moore Bros., who relied upon same and took the rent notes given by her tenants to her for rent for 1909, and advanced the supplies; that the proceeds of the crops raised by said tenants were by said Moore Bros. applied to the payment for supplies furnished. Said agreement was made an exhibit to the answer and reads:

"Feb 18, 1909.

"This is to certify that I, as executor of the estate of Peter Mengoz, deceased, will...