Hill v. Gregory

• Decision Date: 16 October 1897
• Parties: HILL v. GREGORY
• Court: Arkansas Supreme Court

42 S.W. 408

64 Ark. 317

HILL v. GREGORY

Supreme Court of Arkansas

October 16, 1897

Appeal from Woodruff Circuit Court, H. N. HUTTON, Judge.

Judgment affirmed.

M. T Sanders, for appellant.

The provision of the statute of 1889 that the same limitation should apply to mortgages and the debts they secured does not affect a mortgage with power of sale, when sought to be enforced by trustee's sale, given before the passage of the act. 43 Ark. 469; id. 504; 47 Ark. 515. This would be to impair the obligation of subsisting contracts. 40 Ark. 423; 47 Ark. 515; 2 Jones, Mortgages, § 423; Cooley, Const. Lim. 433; 40 Pa.St. 327; 44 Pa.St. 313; 84 Pa.St. 437; 46 id 127; 9 Cal. 81; 30 N.W. 458; 13 S.E. 664; 18 S.C. 481; 22 id 504; 18 Grat. 244; 26 S.W. 497; 6 Wheat. 407. The mortgage is kept alive, as between the parties, although payments relied on to take it out of statute are not indorsed on margin of record.

Rose, Hemingway & Rose, and P. R. Andrews and N. W. Norton, for appellee.

The statute of limitations may be set up as a defense to a mortgage by a subsequent purchaser. Jones, Mort., § 214, a & b. The mortgage is barred when the note which it secures is barred. Sand. & H. Dig., §§ 5094 and 5095. The statute applies to mortgages with power of sale. 22 Ark. 104; 49 Ark. 249; 52 Ark. 296. The statute was not unconstitutional. 16 Ark. 640; 39 S.W. 1046.

OPINION

BUNN, C. J.

One W. A. Chaney executed his promissory note and deed of trust, with power of sale, to secure said note to one W. R. Spivey, on the 19th day of January, 1885, said note being due and payable on the 15th day of November, 1885. On the 21st day of February, 1885, said W. A. Chaney executed and delivered his other promissory note to Nathan Gregory, due and payable on the 15th of November, 1885, and to secure the same executed and delivered to E. G. Thompson, as trustee, his deed of trust, in which, for the purpose aforesaid, the same property was conveyed as in the deed of trust or mortgage given to W. R. Spivey aforesaid. The mortgage was duly filed for record in the recorder's office of Woodruff county, where the property is situate, on the 23d of January, 1885, and the deed of trust presumably was filed for record on the day of its execution. Spivey transferred the note and mortgage to one R. N. Moreland on July 8, 1893, and the latter, in pursuance of the power contained in the mortgage, sold the property therein conveyed to satisfy said note, the balance then due and unpaid being $ 600; and at this sale the appellant, Frank P. Hill, became the purchaser, and received his deed accordingly, and was put into possession in due time, to-wit: January 13, 1894, and was in possession at the institution of this suit. His said deed was duly filed for record on the 24th of January, 1894.

The appellee, as the administrator of the estate of Nathan Gregory, then deceased, instituted his suit to foreclose his said deed of trust, and decree was entered, on failure of defendant Chaney to answer, on the 21st of August, 1893, and one Ed Roddy was appointed commissioner to sell and make deeds to the property condemned, who accordingly sold to the appellee, Minor Gregory, as administrator of said estate, and executed and delivered to him his deed, date February 24, 1894.

Thereafter the appellee, Minor Gregory, administrator aforesaid, upon his said deed brought his suit against appellant, Frank P. Hill, on the 29th of January, 1895, in the Woodruff circuit court, to recover the lands involved. Hill answered, making an exhibit of his deed.

Presumably the foreclosure suit of Gregory was not barred by the statute, as no contention on that score is shown in the record. On the mortgage note of Spivey, however, two payments have been made after its maturity,--one of $ 500 on November 4, 1887, and another of $ 54.80 on October 3, 1890,--neither of which seems to have been indorsed upon the margin of the record of the mortgage, as the law requires. Such indorsement of the $ 54.80 payment would have taken the case out of the limitation of the statute, but that not having been noted on the record gives rise to the only question in this case, since that defect was the ground of exception to defendant's deed. The court sustained the exception, in effect, and the defendant elected to stand on his deed and the agreed statement of facts, excepted to the ruling of the court, and after judgment filed his motion for new trial, to-wit: (1) The court erred in its finding of facts. (2) The court erred in finding that the rights of the plaintiff Or of the said beneficiary Nathan Gregory, were affected or impaired by the failure of said mortgagee, W. R. Spivey, to indorse the said payment on the said mortgage indebtedness made October 23, 1890, on the margin of the record of said instrument. (3) The court erred in declaring the law to be that the right of the plaintiff, or said beneficiary, Nathan Gregory, were affected by the failure of said mortgagee, Spivey, to endorse the said payment, made October 3,...