Harris v. Mosley, 4-4833.

• Decision Date: 29 November 1937
• Docket Number: No. 4-4833.,4-4833.
• Citation: 111 S.W.2d 563
• Parties: HARRIS et al. v. MOSLEY et al.
• Court: Arkansas Supreme Court

Page 563

111 S.W.2d 563

HARRIS et al. v. MOSLEY et al.

No. 4-4833.

Supreme Court of Arkansas.

November 29, 1937.

Rehearing Denied January 17, 1938.

Appeal from Jefferson Chancery Court; Harry T. Wooldridge, Chancellor.

Suit by Wiley W. Mosley and others against Bennie Harris, Lucy Ford Walker, and others. From an adverse decree the named defendants appeal.

Reversed and remanded, with directions.

Danaher & Danaher, and Sam M. Levine, all of Pine Bluff, for appellants.

Rowell, Rowell & Dickey, of Pine Bluff, for appellees.

MEHAFFY, Justice.

On December 26, 1928, Gilbert Walker, a widower, executed and delivered to E. B. Stokes, trustee for the Bank of Wabbaseka, his promissory note for the sum of $1,435.88, due December 15, 1929, with interest from date until paid at the rate of 10 per cent. per annum. On the same date, to secure the payment of said indebtedness, Gilbert Walker executed and delivered to the trustee his deed of trust conveying the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section 15, township 4 south, range 7 west, in Jefferson county, Ark. The deed of trust provided that it should secure the bank for the payment of any and all renewals of said note and any and all other amounts that the said Walker might owe the bank between the date of the execution of the mortgage and December 31, 1932.

After the execution of said note and mortgage, on January 30, 1929, Gilbert Walker married Lucy Ford. The Bank of Wabbaseka was placed in the hands of the state bank commissioner for liquidation in 1930.

On March 30, 1930, Gilbert Walker renewed the note, giving to the bank a new note. His wife did not join in the note and no other mortgage was executed. This renewal note was for the sum of $1,935.88, $500 in excess of the original note, with interest at the rate of 10 per cent. per annum from date until paid. The second note matured November 15, 1930.

On June 17, 1935, the appellees filed suit to foreclose the lien of the deed of trust on the 80 acres of land which was the homestead in Jefferson county, Ark. Gilbert Walker died February 19, 1933, survived by a widow, Lucy Ford Walker, and numerous heirs, including the appellant Bennie Harris, who was a minor under the age of 14 years. Neither Bennie Harris nor the widow were made parties to the foreclosure suit, that is, the widow was not made a party, and Bennie Harris was not served. On November 4, 1936, the chancery court of Jefferson county entered a decree foreclosing the mortgage and directing the sale of the property, but as to Bennie Harris, the case was continued for further service.

A receiver was appointed and on April 10, 1937 the court ordered the sheriff of Jefferson county to dispossess the persons in possession of the property and to surrender the possession to the receiver. A guardian ad litem for Bennie Harris, a minor, was appointed on November 4, 1936, and on that date answer was filed by the guardian for the minor.

On April 12, 1937, Lucy Ford Walker, widow of Gilbert Walker, entered her appearance. On April 27, 1937, an amendment to the complaint was filed asking that Lucy Ford Walker be joined as defendant in order that her right of dower and homestead, if any, may be foreclosed and barred, and that the plaintiff have and recover of the defendants, as prayed in their original complaint, and that the same be declared a first lien on the lands described in the original complaint, and that all right, title, and interest, including dotal and homestead rights, if any, of the defendant Lucy Ford Walker, and that all right, title, and interest of the other defendants, be foreclosed and forever barred.

On May 6, 1937, Lucy Ford Walker filed answer denying the allegations of the complaint and alleging that she was the widow of Gilbert Walker, and as such was entitled to the...