Foster v. Luck

• Decision Date: 16 March 1914
• Citation: 165 S.W. 267,112 Ark. 118
• Parties: FOSTER v. LUCK
• Court: Arkansas Supreme Court

165 S.W. 267

112 Ark. 118

FOSTER v. LUCK

Supreme Court of Arkansas

March 16, 1914

Appeal from Columbia Chancery Court; James M. Barker, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellant Foster, as the beneficiary, and J. H. Franklin, as trustee instituted suit in the Columbia Chancery Court, September 16 1911, against the appellees to foreclose certain deeds of trust that were executed by one Eugene Burris to secure certain notes, one deed of trust and the note it was executed to secure being dated March 9, 1906, and the other dated 1st day of February, 1908. The note of March 9, 1906, was for $ 590.72, with interest at 10 per cent from maturity until paid. The note of date February 1, 1908, was for $ 345, with interest at the rate of 10 per cent from date until paid.

The complaint alleged that the deed of trust given to secure the note for $ 590.72, of date March 9, 1906, embraced certain lands (which are described in the complaint) and one roan mare mule eight years old, and that the deed of trust given to secure the note for $ 345, of date February 1, 1908 embraced a certain tract of land (which is described in the complaint). The complaint alleged that the deed of trust of March 9, 1906, was recorded March 10, 1906, and that the deed of trust of February 1, 1908, was recorded on that day.

It is not alleged in the complaint that the deed of trust executed March 9, 1906, was given to secure any items of open account that might be due from Burris to Foster. Nor is it anywhere alleged that any items of open account were included and secured by the deed of trust of February 1, 1908. The allegation of the complaint is that the plaintiff "furnished under the last named mortgage, in addition to the note secured by the mortgage, $ 203.57 for the year 1908 which was paid;" and the further allegation that "on February 10, 1909, Burris and the plaintiff Foster had an adjustment of their account, the amount due on the first real estate mortgage note and the amounts furnished under same, and the amount due on the second real estate mortgage note and the amounts furnished under the same, and that on that day there was due from Burris to Foster $ 1,869.22."

It was further alleged that there was due September 15, 1911, under the first mortgage debt $ 1,617.55, and on the last mortgage debt on said date $ 734.50, and on account of 1910, $ 165. There is an allegation that "the complainants have a lien on the real estate and the roan mare mule described in deed of trust dated March 9, 1906, for the sum of $ 1,617.55, and that they have a lien on the real estate described in deed of trust dated February 1, 1908, for $ 899.50, and they ask a decree of foreclosure of the property described in the respective deeds of trust to pay the respective debts secured by the same."

Appellee Luck, according to the abstract of the pleadings, admitted the execution of the note for $ 590 of March 9, 1906, and the deed of trust to secure the same, but alleged that the debt that the deed of trust was given to secure was usurious. He did not deny that there were accounts for the years 1906 and 1907, which were covered by notes evidencing the amount thereof. He denied, however, that there was an adjustment of account on the 1st of February, 1908. He admitted that Burris executed a note to Foster for $ 1,244.10, but pleaded that the note was void for usury, and that Burris executed a new deed of trust on personal property which was in full satisfaction of the deed of trust executed on the 9th of March, 1906. He admitted the execution of the note on the 1st of February, 1908, for $ 345, and the deed of trust to secure the same on the tract of land described in the complaint as embraced in that deed of trust, but denied that Burris owed the amount alleged to be due under that deed of trust; and denied that Burris, on the 1st day of February, 1909, owed $ 1,869.22; but admitted that Burris had executed his note for that amount and deed of trust on personal property to secure the same, but he set up that the amount was usurious and void, and that the note and personal security was in satisfaction of all prior indebtedness. He further set up that on the 5th day of February, 1910, Burris executed a note for $ 690 secured by a deed of trust on personal property, which was in full satisfaction of prior indebtedness and liens, and set up that said note and deed of trust were void for usury. He set up affirmatively that on the 24th of January, 1910, Burris was owing him $ 800, which was secured by a deed of trust on the same lands covered by Foster's two real estate deeds of trust, and that on the 18th day of March, 1911, Burris was due him the sum of $ 1,500, which was also covered by a deed of trust on the same land embraced in Foster's deeds of trust.

The answer of appellee Couch, as abstracted, admitted the execution of the note of March 9, 1906, and the deed of trust to secure the same, and averred that subsequent notes and deeds of trust were executed and delivered by Burris to Foster in full satisfaction of the first deed of trust, and alleged that he had a deed of trust given to secure the sum of $ 50; that he had a deed of trust executed to appellee Couch, January 20, 1906, to secure him in the sum of $ 50, and that this deed of trust was prior to Foster's and included the roan mare mule which was also included in Foster's deed of trust of March 9, 1906. He set up affirmatively that there was due him under deed of trust executed by Burris for 1907 and 1908, and that at the time of the filing of his answer and cross-complaint Burris was due appellee Couch the sum of $ 314.09. He set up that his deed of trust included the roan mare mule covered by Foster's deed of trust, and that his lien was prior in time to that of Foster. He made his answer a cross-complaint and prayed that he have judgment and that the property be sold to satisfy the same.

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