Goodman v. Pareira

• Decision Date: 21 December 1901
• Citation: 66 S.W. 147
• Parties: GOODMAN et al. v. PAREIRA et al.
• Court: Arkansas Supreme Court

66 S.W. 147

GOODMAN et al. v. PAREIRA et al.

Supreme Court of Arkansas.

December 21, 1901.

Appeal from Pulaski chancery court; Thomas B. Martin, Chancellor.

Suit by Isaac Pareira, trustee, and another, against Elizabeth Goodman and others. From a decree in favor of the complainants, the defendants appeal. Affirmed.

On the 18th day of August, 1876, Isaac Swanigan executed and delivered to A. Kempner four promissory notes, for $198.75 each, payable on January 1, 1877, 1878, 1879, and 1880, respectively, bearing interest at the rate of 10 per cent. per annum from January 1, 1877. On the same day, to secure the payment of said notes, Swanigan and his wife, Isabella, executed to I. Pareira, trustee, a deed of trust conveying the S. E. ¼ of the E. ½ of the S. E. ¼ of section 10, township 2 N., range 13 W., in Pulaski county. The deed was duly acknowledged on the same day, and filed for record on the 25th of the same month. The notes are set out in the transcript. Swanigan paid $139.20 on the first note on January 24, 1880. Swanigan died in 1881. After his death, Kempner says, no payments were made, except small amounts of $10 at one time and $5 at another. Swanigan's widow, on the other hand, claims that she paid 10 bales of cotton on the mortgage debt after her husband's death, delivering to Kempner 3 bales in 1882, 4 in 1883, 1 in 1884, and 2 in 1885. On the 10th day of September, 1889, Pareira, the trustee, filed a complaint in the Pulaski chancery court to foreclose the trust deed, making the widow and children of Swanigan parties defendant. Afterwards the plaintiff filed an amendment to the complaint, alleging that there had been a mistake in describing the land in the trust deed, and that the land intended to be conveyed was the N. E. ¼ of S. E. ¼ of section 10, township 2 N., range 13 W., and praying that the trust deed be reformed so as to describe the land intended to be conveyed, and for foreclosure, etc. The adult defendants answered, pleading (1) seven years' adverse possession; (2) that the notes were barred by limitation; (3) that the cause is barred by plaintiff's laches; (4) that the debt was paid by Swanigan in his lifetime. A guardian ad litem was appointed for all minor defendants. The case came on for trial on January 9, 1897, and the decree of the chancellor was as follows: "On this day comes the plaintiff, by W. S. McCain and David B. Samuels, his solicitors, and come the defendants, Isabella Goodman, now Isabella Young, and Matilda Phillips, by W. J. Terry, solicitor, and comes T. M. Seawell as guardian ad litem of Amos Swanigan, Robert Swanigan, and Army Swanigan, infant defendants herein. And it appearing to the court that due service of process of summons against said defendants for the time and in the manner prescribed by law, issued on the complaint, has been made in this cause, and this action, being reached upon the call of the calendar, is submitted to the court, for its consideration and judgment, upon the complaint, with its exhibits, and amendment to complaint, and the answer and amended answer of the defendants Isabella Young, Matilda Phillips, and upon the answer of T. M. Seawell as guardian ad litem for said infant defendants, the deposition of L. S. Dunscomb, A. Kempner, and A. Kempner's second deposition, and upon the original notes and deed of trust, and upon the depositions of Isabella Goodman and Matilda Phillips. And it appearing to the court that on August 18, 1876, Abraham Kempner sold and intended to convey to one Isaac Swanigan the following land in Pulaski county, Arkansas, to wit: The northeast quarter of the southeast quarter of section ten (10), township two (2) north, of range thirteen (13) west, containing forty (40) acres, but by mistake of the draftsman said forty acres of land was improperly described, and that said Isaac Swanigan gave for said land to said Abraham Kempner four promissory notes, which he still holds, and on which the sum of six hundred (600) dollars is now due, with interest from this date at the rate of ten per cent. per annum; and, in order to secure the payment of said notes for...