Gaines v. Saunders

• Decision Date: 03 March 1888
• Citation: 7 S.W. 301
• Parties: GAINES <I>v.</I> SAUNDERS <I>et al.</I>
• Court: Arkansas Supreme Court

Page 301

7 S.W. 301

GAINESv.

SAUNDERS et al.

Supreme Court of Arkansas.

March 3, 1888.

Appeal from circuit court, Chicot county; J. M. BRADLEY, Judge.

Action by Gaines, assignee of G. T. Stripling, against Martha A. Saunders, to foreclose a mortgage. Cross-bill by the heirs of John H. Saunders, asking to set aside such mortgage judgment on cross-bill in favor of defendants therein, and plaintiff and certain defendants appeal.

D. H. Reynolds, for appellants. J. M. Rose, for appellees.

BATTLE, J.

On the 1st of March, 1883, Martha A. Saunders borrowed of G. T. Stripling $1,500, and mortgaged to him certain lands to secure the payment thereof. Stripling transferred the note and mortgage to Gaines, who brought this action to foreclose the mortgage. William P. Saunders, John R. Coffman, and Annie P. Coffman, his wife, W. T. Read and Antoine P. Read, his wife, and Charles L. Mead and Mattie P. Mead, his wife, on their application, were made parties defendants. They filed an answer and cross-complaint, alleging therein substantially as follows: "They admit the execution of the note and mortgage, and the transfer to Gaines, but deny that Mrs. Saunders had any right to incumber, sell, or convey the lands; and state that they, as the heirs of John H. Saunders, are the owners of and entitled to them. They make J. L. Harris and J. M. Parker, as partners doing business under the firm name and style of J. L. Harris & Co., and Gaines and Mrs. Saunders, defendants to their cross-complaint. They state that John H. Saunders, at his death, was in possession of and owned the lands in controversy; that prior to the death of Saunders all of these lands were purchased by Johnson Chapman for John S. Whittaker, as executor of H. T. Walworth, dec'd, under a decree foreclosing a mortgage,—Whittaker agreeing that Saunders should have time to redeem them by paying the debt, for which they were sold, and to reconvey them to him when the payment was made;" that Saunders remained in possession until he died, when Mrs. Saunders became administratrix of his estate, and took possession and occupied them without paying rent; that Chapman, as trustee, conveyed the lands to Whittaker, as executor, he promising to perform the agreement with Saunders; that Saunders, in his life-time, paid $5,000 on the debt for which the lands had been sold, leaving less than one thousand dollars due thereon; that Mrs. Saunders paid the remainder of the debt out of the assets of the estate of her intestate, and Whittaker conveyed the lands to her by quitclaim deed, she being in possession and holding them, at the time, as administratrix of Saunders. They ask that all deeds of trust and mortgages to and conveyances of the lands executed by Mrs. Saunders be canceled, and that she be decreed to hold the lands in trust for their benefit. Gaines, Harris, and Parker, severally answered the cross-complaint, and alleged that they are bona fide purchasers of the lands in controversy, for a valuable consideration, without notice, and are not affected by any right, claim, or interest the heirs of John H. Saunders had therein or thereto.

The evidence introduced on the hearing proves that the lands in controversy formerly belonged to John H. Saunders; that he mortgaged them to John S. Whittaker, as executor of H. T. Walworth, deceased, to secure a debt he owed Walworth in his life-time; that the mortgage was foreclosed, and the lands sold; that, before the foreclosure, there was a parol agreement between Whittaker, as executor, and Saunders, that the lands should be sold and purchased by Chapman, and should be reconveyed to Saunders when he paid the debt he owed to the estate of Walworth; that the mortgage was foreclosed, and the lands were sold and conveyed to Chapman, as trustee; that afterwards Chapman conveyed the lands to Whittaker, as agent and attorney in fact for the heirs of Walworth, with an express understanding that he would perform the agreement with Saunders; that thereafter Saunders,...