Holloway v. Morris

• Decision Date: 19 January 1931
• Docket Number: No. 90.,90.
• Citation: 34 S.W.2d 750,182 Ark. 1096
• Parties: HOLLOWAY et al. v. MORRIS et al.
• Court: Arkansas Supreme Court

34 S.W.2d 750

182 Ark. 1096

HOLLOWAY et al. v.MORRIS et al.

No. 90.

Supreme Court of Arkansas.

January 19, 1931.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Suit by C. V. Holloway and others against E. E. Morris, Jr., and others. From the decree, plaintiffs appeal.

Affirmed.

C. V. Holloway, of England, Ark., for appellants.

Price Shofner, of Little Rock, for appellees.

HART, C. J.

Appellant prosecutes this appeal to reverse in part a foreclosure decree for real estate, declaring another mortgage on it a prior lien.

The record shows that C. M. Flynn and Nath Morris were engaged in the mercantile business as partners, which partnership was terminated by the death of Nath Morris July 15, 1919.The interest of decedent in the partnership was inherited by his four children.According to the testimony of C. M. Flynn, he and the heirs of Nath Morris, deceased, entered into a written contract under which they were to give mortgages to each other to secure any indebtedness the court might find would be due from one to the other in winding up the Morris and Flynn partnership.Flynn gave a mortgage to E. E. Morris, Jr., under the terms of the contract.On November 2, 1923, in compliance with the contract, E. E. Morris, Jr., gave to C. M. Flynn a mortgage on the land in question for the purpose of securing him to the extent of onefourth of the liability that might be found to be due him when the affairs of said partnership were completely wound up.This mortgage was filed for record on February 14, 1924.A suit for accounting was commenced in the Lonoke chancery court on July 14, 1924, but the record does not clearly show which of the interested parties brought the suit.

There was a mortgage executed on the land in question by E. E. Morris, Jr., to Morris & High to secure an indebtedness due them on January 30, 1924, and this mortgage was duly assigned to C. V. Holloway on March 28, 1925.The chancellor found that there was due the sum of $423.12 on this mortgage, and it was held to be a prior lien on the land in question.Hence, no further reference need be made to it.

The court further found that there was due appellant $810 on a subsequent mortgage transferred to him which had been duly filed for record December 17, 1924, on the land in question.The court held that this amount was a junior and subsequent lien to the C. M. Flynn mortgage which had been filed for record February 14, 1924.

The question of the priority of these mortgages is the only issue to be determined by the appeal.The record shows that the mortgage from E. E. Morris, Jr., to C. M. Flynn was filed for record before a mortgage which was transferred to appellant.This is conceded, but it is insisted that the Flynn mortgage is barred by the statute of limitations.

The partnership of Morris & Flynn was dissolved by the death of Nath Morris, and C. M. Flynn, as surviving partner, became entitled to the possession and management of the firm property for the purpose of settling the partnership accounts.Hill v....