Harper v. McGoogan

• Decision Date: 10 February 1913
• Citation: 154 S.W. 187,107 Ark. 10
• Parties: HARPER v. MCGOOGAN
• Court: Arkansas Supreme Court

154 S.W. 187

107 Ark. 10

HARPER v. MCGOOGAN

Supreme Court of Arkansas

February 10, 1913

Appeal from Union Chancery Court; James M. Barker, Chancellor reversed.

Cause remanded.

Patterson & Green, for appellant.

A mortgage by the wife of her lands to secure her husband's debt is valid. Kirby's Dig., § 740; 34 Ark. 17; 45 Ark. 117; 70 Ark. 516.

2. The evidence does not sustain the defense that Mrs. McGoogan was forced or unduly influenced by her husband to sign the mortgage. Moreover, it is not necessary that a married woman be examined separately or that she make any disclaimer of compulsion or undue influence in her acknowledgment to a conveyance of her separate property. 41 Ark. 421; 43 Ark 160.

If the grantee was no party to the improper influence and knew nothing of it, the conveyance will not be vitiated even though there was actual fraud or undue influence on the part of the husband. 41 Ark. 426; 38 Ark. 377. See also 49 Ark 85; 71 Ark. 517; 13 Cyc. 584; Id. 577; 70 Ark. 512; 71 Ark. 185.

3. The deed of trust is sufficient to convey the wife's fee in the lands. Article 9, § 7, Const. 1874; Kirby's Dig., § 740; 43 Ark. 28, 29; 53 Ark. 107; 70 Ark. 34; 53 Ark. 377; 87 Ark. 372; 90 Ark. 113; 94 Ark. 613; 91 Ark. 268.

In this case the deed of trust is sufficient without Mrs McGoogan's acknowledgment at all. 41 Ark. 421; 47 Ark. 235; 49 Ark. 85; 71 Ark. 517. And if defective her acknowledgment is cured by subsequent curative acts of the Legislature. Acts 1907, p. 355; Acts 1911, p. 12.

4. The defenses that the mortgage is barred by the statute of limitations, and that it is void for usury, are not sustained by the evidence.

As to usury, the burden is on the party who pleads it, and it will not be inferred where from the circumstances the opposite conclusion can reasonably and fairly be reached. 57 Ark. 251; 59 Ark. 368-9; 68 Ark. 168; 74 Ark. 252; 9 Pet. 378; 25 Ark. 195; 54 Ark. 566.

E. O. Mahony for appellees.

Argument stated in the opinion.

OPINION

SMITH, J.

This action was begun by appellant in the Union Chancery Court to foreclose a deed of trust on a certain tract of land in that county, executed by the appellees to secure a note given by J. M. McGoogan, of even date with the deed of trust, and payable to the order of Doctor J. W. Harper. The complaint was filed August 14, 1911, and alleged in substance that on December 14, 1903, the defendant John M. McGoogan, executed and delivered to Doctor J. W. Harper, now deceased, his promissory note for $ 300 due and payable December 1, 1904, with interest at ten per cent per annum from maturity until paid and to secure the same, executed the deed of trust here sought to be foreclosed. That for a valuable consideration and before maturity, Doctor Harper transferred and assigned to plaintiff, Mrs. Mary Harper, said note and deed of trust, which were taken by said Doctor Harper as agent for plaintiff; and that the money loaned to and received by defendant, McGoogan, was the money of the plaintiff, Mrs. Mary Harper. The note and deed of trust read as follows:

EXHIBIT "A."

Three Creeks, Ark., Dec. 14, 1903.

On or by December 1, 1904, I promise to pay to the order of Doctor John W. Harper, the sum of three hundred dollars, with ten per cent interest from due until paid. This note is given to secure mortgage of same amount and date.

John McGoogan.

Endorsement: Received on this note $ 15, one-half interest for the year 1905. Amount due December 1, 1905, $ 315. Amount due, $ 315; interest 1906, $ 31.50; total, $ 346.50. Rec. April 25, 1910. Paid $ 5.

For value received I hereby assign and transfer to Mary Harper all right and title I may have to the within note.

(Signed)

J. W. Harper.

Three Creeks, Ark., November 23, 1905.

March 1, 1909, paid $ 40.

EXHIBIT "B."

(The essential portions of the deed of trust in controversy are as follows:)

This deed of conveyance, made and entered into this 14th day of December, 1903, by and between John McGoogan, party of the first part, and W. G. Pendleton, as trustee, of the second part. Witnesseth, that the said party of the first part, being indebted to the said Doctor John W. Harper in the sum of $ 300 dollars as evidenced by his note of this date, due and payable on the first day of December, 1904, with ten per cent interest thereon from due until paid, and being desirous of securing the payment of the said sum of money unto the said Doctor John W. Harper and in consideration thereof, and in the further consideration of $ 100 in hand to the said party of the first part, the said John McGoogan, party of the first part, doth hereby bargain, grant and sell unto the said W. G. Pendleton, party of the second part, the following lands and personal property, towit: (Certain personal property, describing it), "also northeast quarter of section 24, township 19, range 17, containing 160 acres, the same now being in possession of parties of the first part." * * * * Then follows the usual crop mortgage provisions in blank, also the usual covenant of ownership and freedom from encumbrances and liens, and warranty of title, followed by the usual conditions of ordinary deeds of trust as to forfeiture and sale by trustee. The last provision of the deed of trust is as follows:

"And I, M. J. McGoogan, wife of the said John McGoogan, for the consideration and purposes aforesaid, do hereby join with my said husband in the execution of this deed, and do bargain, grant, sell and convey unto the said W. G. Pendleton, as trustee, his heirs, assigns and successors, all my right of homestead in said property, present and prospective, and for and on my own part and behalf do hereby freely and fully relinquish and release unto the said party of the second part all my right and claim to dower in and to the aforesaid granted and bargained premises.

In witness whereof, we hereunto set our hands and seals this, the 14th day of December, 1903.

John McGoogan,

(Seal).

M. J. McGoogan,

(Seal).

State of Arkansas,

County of Union.

Acknowledgment. Personally appeared before me, W. S. McAlpine, a justice of the peace in and for the county and State aforesaid, John McGoogan, party to the within and foregoing deed of trust, and to me well known, and acknowledged that he has executed said deed for all the purposes and considerations therein mentioned, expressed and set forth, and asked that the same be so certified, which is accordingly done. And I further certify that on this day also voluntarily appeared before me, a justice of the peace, M. J. McGoogan, wife of the said John McGoogan, to me well known as the person whose name appears upon the within and foregoing deed of trust, and in the absence of her said husband declared that she had, of her own free will, joined with him in the execution of the same as to her homestead rights therein stated, and had signed the relinquishment of dower therein expressed for the consideration and purposes therein contained and set forth, without compulsion or undue influence of her said husband.

In testimony whereof, I have hereunto set my hand and caused the seal of my office to be affixed. This done the 14th day of December, 1903. W. S. McAlpine, J. P."

McGoogan and his wife filed their separate answers, and Mrs. McGoogan alleged that she thought the instrument signed was a mortgage on the crop; that the land in controversy was her own land and she had not intended to incumber it; that the note sued on was usurious; and that there was an agreement between Doctor Harper and her husband that the latter should have all the time he wanted to pay said note; she denied Mrs. Harper was the purchaser of the note for a valuable consideration or that it was assigned to her before maturity; and alleged that her husband had forced her to sign the deed and acknowledge it against her will; and that she had not signed the note; and had received none of the proceeds thereof; and she pleads the statute of limitations. Her husband in his answer admitted the execution of the note, but said that there was deducted $ 45 or fifteen per cent as interest and in addition, there was an agreement in the note to pay ten per cent, which made a total rate of twenty-five per cent which was charged, and agreed to be paid; denied that the credits on the margin of the deed of trust record were placed there within five years from the date of the mortgage. There was a decree for the defendant and the cause dismissed and the plaintiff appealed. The points in issue between the parties and which are discussed in the briefs are as follows:

First. That a mortgage by the wife of her lands to secure her husband's debt is invalid.

Second. That the wife was unduly influenced or forced by the husband to execute the deed of trust.

Third. That the wife did not sufficiently join in the execution of the deed of trust so as to convey the fee, and the instrument is invalid because the wife intended to convey only her dower interest in the lands, which in this case amounted to a conveyance of no interest at all.

Fourth. That action to foreclose the mortgage is barred by the statute of limitations.

Fifth. That the note secured by the deed of trust was usurious.

To discuss these points in their order it may be first said that, the right of the wife to mortgage her separate property to secure the payment of her husband's debt is well settled. Collins v. Wassell, 34 Ark. 17; Scott v. Ward, 35 Ark. 480; Petty v. Grisard, 45 Ark. 117; Goldsmith v. Lewine, 70 Ark. 516, 69 S.W. 308.

As to the duress of the wife, compelling her to sign and acknowledge the deed of trust, it is sufficient to say that no contention is made that Doctor Harper had knowledge of, or took part in, the exercise of this duress. "No fraud or...