Goode v. King
| Decision Date | 19 November 1934 |
| Docket Number | No. 4-3528.,4-3528. |
| Citation | 76 S.W.2d 300 |
| Parties | GOODE et al. v. KING. |
| Court | Arkansas Supreme Court |
W. A. Jackson and Beloate & Beloate, all of Walnut Ridge, for appellants.
D. L. King, of Williford, R. C. Waldron, of Walnut Ridge, and J. H. Townsend, of Black Rock, for appellee.
Richard M. Moore owned at the time of his death a farm known as the old Marshall farm, situated on the right bank of Spring river in Lawrence county. He was survived by his widow, Mrs. M. C. Moore, and three sons, whose initials were N. R., J. C., and B. M. Moore, respectively. After the death of his father, N. R. Moore borrowed $1,500 from J. S. Pruitt, and gave Pruitt a note for that amount, which was signed by N. R. Moore and Pearl Moore, his wife. This note created a lien upon the makers' interest in his father's farm. Pruitt, the payee named in the note, died, and Wells, his administrator, brought suit to enforce the lien there granted in payment of the note. The Bank of Ravenden and J. C. and B. M. Moore, the two brothers of the maker of the note, filed an intervention in this suit, and also a demurrer to the original complaint, which was sustained; but upon an appeal to this court it was held that the demurrer should have been overruled, and the decree of the lower court was reversed and the cause was remanded with directions to overrule the demurrer. See Wells v. Moore, 163 Ark. 542, 260 S. W. 411. No directions were given upon the reversal and remand of the cause except to overrule the demurrer and the present appeal arose out of subsequent proceedings.
In this intervention filed by the Bank and J. C. and B. M. Moore, it was alleged that N. R. Moore, while acting as cashier of the bank, had been found short in his accounts with the bank to the admitted extent of $3,750, and to make the shortage good N. R. Moore had conveyed his interest in the lands which he had inherited from his father to his brothers, J. C. and B. M. Moore, who assumed the payment of the shortage, and, by way of security therefor, mortgaged to the bank the interests which they had inherited and also the interest which they had acquired in the deed from their brother, N. R. Moore. It was not then certain that the full amount of N. R. Moore's shortage had been determined, and the mortgage was drawn to cover any other shortage which might later be discovered, and it was subsequently determined that the total shortage approximated $7,000.
J. C. Moore died and was survived by four minor children and by his widow, Mary Ellen Moore, who subsequently married Charles Goode, and she is referred to throughout the record and in the briefs as Mrs. Goode. The widow of Richard M. Moore, who had joined in the execution of the mortgage to the bank to secure the payment of the shortage of her son, N. R. Moore, was made a party defendant to the cross-complaint which the bank filed along with its intervention to foreclose the mortgage against her and against her surviving sons, N. R. and B. M. Moore, and against the widow and minor heirs of J. C. Moore. These cross-defendants were all properly served with process upon the filing of the cross-complaint, and D. L. King was employed as an attorney to represent the cross-defendants.
Without tracing the progress of that litigation, it may be said that it eventuated in a decree ascertaining and adjudging the amount of N. R. Moore's shortage to the bank, and directing the foreclosure of the mortgage given to secure its payment.
Much of the testimony contained in the record now before us was devoted to an attempt to show that King had been unfaithful to his clients and had conspired with the bank and its representatives to improperly present certain defenses which could and should have been offered in the foreclosure suit. These were, first, that the execution of the mortgage had been secured through coercion by threats to send N. R. Moore to the penitentiary if it were not executed, and that the mortgage was finally executed for the purpose of compounding a felony, and that through and in consideration of the execution of the mortgage a felony was compounded and N. R. Moore was not prosecuted for his crime as he would otherwise have been. The second defense which it is insisted King should have made — but did not make — is that there were certain credits to which N. R. Moore was entitled and which would have been allowed had they been properly asserted.
We will not review the testimony on these issues of fact, but are content to say that the testimony utterly fails to establish either contention.
After the rendition of the decree, and subsequent to the sale thereunder, an attempt was made, which appears to have been in the utmost good faith, to borrow the money to pay the judgment rendered in the decree of foreclosure. It may be said that a settlement had been made of the original suit brought by Wells, administrator, to foreclose the lien created by the note from N. R. Moore to Pruitt. The terms and details of that settlement are not disclosed, but we regard this as unimportant. The fact remains that an apparently valid decree has been rendered, in which all interested persons had been made parties, upon proper and sufficient service, including the four minor children of J. C. Moore. This decree determined the sums secured by the mortgage and ordered its foreclosure. It was rendered June 24, 1925, and pursuant to its provisions the land described in the mortgage was ordered sold, and it was advertised to be sold on October 24, 1925. In the meantime futile efforts were being made to borrow the money to pay the judgment. These failing, King personally agreed to pay the judgment, and he took an assignment thereof to himself as security for the loan which he proposed to make. The fact is established beyond the possibility of doubt that King advanced from his personal funds the money for this purpose, $6,000 of which were derived from the sale of government bonds which he then owned. The debt secured by the mortgage bore interest at the rate of 10 per cent., as did also the judgment. King actually advanced $8,986.25 in cash, which he paid to the bank, and at the time of payment took an assignment from the bank of its judgment for the debt and of the decree declaring the lien and ordering its foreclosure. It is equally certain that at that time King had no intention of acquiring the title to the land, and made the advance for the benefit of his clients and at their request.
The sale as advertised was not held, but was indefinitely postponed, and the sale which was later had under the decree of foreclosure did not occur until December 18, 1926. During this interval the attempts to finance the proposition were continued, but it was found that an inaccurate description of the land in the mortgage, which had been carried forward into the decree, was an objection which rendered this more difficult. It was shown that in the preparation of the mortgage the land described had been copied from a tax receipt, which was supposed to embrace all the lands comprising the Moore farm, and which included also forty acres, a part of the farm, which Mrs. M. C. Moore, the mother of N. R. Moore and the widow of Richard M. Moore, owned individually, and which was, therefore, not conveyed by the deed from N. R. Moore to his brothers, J. C. and B. M. Moore. Much testimony was offered to the effect that this forty-acre tract, although a part of the Moore farm, had been fraudulently included in the mortgage to the bank in the execution of which Mrs. M. C. Moore had joined. There are two answers to this contention. The first is that the testimony does not show any fraud or deception or mistake in the inclusion of Mrs. M. C. Moore's own individual forty acres in the mortgage. The second is that the question is concluded by the decree of foreclosure to which she had properly been made a party.
It was thought advisable and necessary and to the interest of all parties to correct the description of the land as it appeared in the decree, and a petition was filed in the court which rendered it for that purpose. This petition appears to have been supported by the affidavits of N. R. Moore and B. M. Moore and Mrs. M. C. Moore, their mother, which were made on March 30, 1926, which was three weeks prior to the rendition of the decree of correction made pursuant to the prayer of their petition. This petition recites that when, on January 30, 1922, the Moores executed the mortgage to the bank, "they agreed with the said Bank of Ravenden to execute said mortgage covering all the lands owned or in which any of the parties grantor of said mortgage had an interest lying in Sections 6 and 7, Township 18 North, Range 2 West, known as the Moore lands, should be according to said agreement and ought to have been embraced and covered in...
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