Gibson v. Doughty
| Decision Date | 19 April 1937 |
| Docket Number | 4-4613 |
| Parties | GIBSON v. DOUGHTY |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Chancery Court, Osceola District; J. F Gautney, Chancellor; affirmed.
Affirmed.
Eugene Sloan and Shane & Fendler, for appellants.
Herman Horton and Roy Penix, for appellees.
Appellees brought this suit on February 5, 1936, seeking recovery on a debt secured by a deed of trust and for foreclosure of that instrument. The debt secured by the mortgage was the sum of $ 5,000, due December 1, 1930. The deed of trust was properly executed and acknowledged and placed of record. On September 15, 1930, an extension agreement was executed and delivered to the trustee by which the due date of the debt secured by the original deed of trust was extended to December 1, 1935. This extension agreement was duly recorded and there was endorsed upon the margin of the original deed of trust the following: "For extension of indebtedness secured in this T-D see extension duly recorded in record book 57, page 374. W. W. Holipeter, clerk, by T. W. Potter, deputy clerk." The original mortgagors were made defendant, and, also, a number of other persons who appeared to have some interest in the lands secured by appellees' deed of trust.
The defense tendered by the defendants, Clay Sloan, Wilson Ward Company and J. H. Crane, as trustee for Lee Wilson & Company, was that while their mortgages were executed and recorded subsequent to the deed of trust sued on, their interest was prior and paramount to that of appellees because of a failure to indorse a proper memorandum of the extension agreement on the margin of the record of the original deed of trust as provided by § 7382, Crawford & Moses' Digest, and that they were third parties within the meaning of that statute.
If it be conceded that the memorandum did not comply with the terms of the statute, and did not arrest the running of the statute of limitations as to third parties (a point we do not decide), we are of the opinion the decree of the trial court holding appellees' deed of trust superior to that of appellants is correct for the reason that they are not third parties within the meaning of the statute. On June 1, 1934, the mortgage under which appellant, Clay Sloan, claims was executed by the mortgagors of appellees' deed of trust. Sloan's mortgage covered several tracts of land designated as tracts Nos. 1, 2, etc. Tract No. 2 conveyed the identical lands described in appellees' deed of trust, and was made "subject to a prior mortgage indebtedness of approximately $ 5,000." It is the contention of the appellants that the reference was not sufficiently definite to identify the mortgage referred to in Sloan's mortgage as that of the appellees, and to evidence an intention on his part to recognize the prior incumbrance under the rule announced in McFaddin v. Bell, 168 Ark. 826, 272 S.W. 62, that a general recital in a mortgage or conveyance to the affect that the instrument is made subject to the incumbrances against the property does not estop a mortgagee or grantee from attacking the validity of such incumbrance, and that nothing short of a certain and definite reference in some way to particular incumbrances thereon will evidence the intention on the part of the subsequent mortgagee to recognize such incumbrance.
We think, under the authority of the McFaddin case, supra, that the reference in Sloan's mortgage to prior incumbrances is sufficiently definite to estop him from attacking the validity of the prior mortgage on the ground that it is barred by limitation. If it is sufficiently definite, the proposition that Sloan merely takes the place of the original mortgagor is not open to dispute. The recital in the McFaddin case held sufficient is as follows: "Said E. F McFaddin, trustee, buying the real estate, subject to all mortgages against it on record." The third headnote of that case is as follows: "Recitals in a mortgage that it is taken subject to all mortgages against it...
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Mark v. Maberry
...a prior mortgage, is estopped to deny the superiority of the prior mortgage. Clapp v. Halliday, 48 Ark. 258, 2 S.W. 853; Gibson v. Doughty, 193 Ark. 1037, 104 S.W.2d 449. To overcome the application of the cited cases, Mark claims that this recital in his mortgage is fraudulent, was never a......
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Henry v. Coe
... ... mortgage is not a "third party" because he ... contracted with reference to the first mortgage. In ... Gibson v. Doughty, 193 Ark. 1037, 104 ... S.W.2d 449, it was held that where a conveyance recited that ... it was "subject to a prior mortgage ... ...
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Bank of Atkins v. Griffin, 4-6932.
...463; Gunnels v. Farmers' Bank of Emerson, 184 Ark. 149, 40 S.W.2d 989; Foster v. Taylor, 187 Ark. 172, 58 S.W.2d 675; Gibson v. Doughty, 193 Ark. 1037, 104 S.W.2d 449; Planters National Bank of Mena v. Townsend, 197 Ark. 267, 123 S.W.2d In Gibson v. Doughty, supra [193 Ark. 1037, 104 S.W.2d......
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Henry v. Coe, 4-5832.
...that it is a second mortgage is not a "third party" because he contracted with reference to the first mortgage. In Gibson v. Doughty, 193 Ark. 1037, 104 S.W.2d 449, 450, it was held that where a conveyance recited that it was "subject to a prior mortgage indebtedness of approximately $5,000......