Fayetteville Building & Loan Ass'n v. Bowlin

• Decision Date: 20 March 1897
• Citation: 39 S.W. 1046
• Parties: FAYETTEVILLE BUILDING & LOAN ASS'N v. BOWLIN et al.
• Court: Arkansas Supreme Court

39 S.W. 1046

FAYETTEVILLE BUILDING & LOAN ASS'N v. BOWLIN et al.

Supreme Court of Arkansas.

March 20, 1897.

Appeal from circuit court, Washington county; Edward S. McDaniel, Judge.

Suit by the Fayetteville Building & Loan Association against James Bowlin and others. The American Baptist Home Mission Society filed an interplea. From a decree in favor of the interpleader, plaintiff appeals. Affirmed.

Appellee, the American Baptist Home Mission Society, held a note of the First Colored Baptist Church of Fayetteville, executed through its trustees on 22d day of April, 1886, for $300, due one year after date. The note was secured by a mortgage on the land in controversy, which mortgage was duly recorded on the 1st day of July, 1886. On the 9th day of July, 1889, the said church, through its trustees, executed to appellant, building and loan association, a deed of trust, on the land in controversy, to secure appellant in the sum of $500. This deed of trust was duly recorded on the 15th day of July, 1889. Afterwards, default being made, said land was duly sold, under the power contained in said deed of trust, to appellant, who, upon the deed thus obtained, brought suit in ejectment for the land in controversy against the church and certain of its trustees. Appellee, the American Baptist Home Mission Society, filed its interplea, claiming the property under its mortgage, asking for a transfer to equity, a foreclosure of its mortgage, etc. The cause was transferred to equity. The court found that payments had been made on the indebtedness to appellee from December 16, 1886, to March 26, 1891, but that none of said payments had been indorsed upon the margin or elsewhere of the record of said mortgage. The court found that there was still due on said note and mortgage $351.30, and that the said mortgage of interpleader (appellee) was prior in time and superior to that of building and loan association (appellant), and accordingly rendered a decree in favor of appellee.

E. B. Wall, for appellant.

WOOD, J. (after stating the facts).

The only question presented is the construction of the act of March 25, 1889, which is as follows: "In suits to foreclose or enforce mortgages or deeds of trusts, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given, provided when any payment is made on any such existing indebtedness, before the same is barred by the statute of limitation, such payment shall not operate to revive said debt or to extend the operations of the statute of limitations with reference thereto, so far as the same affects the rights of third parties, unless...