Johnson v. Commonwealth Building & Loan Ass'n

• Decision Date: 22 September 1930
• Docket Number: No. 128.,128.
• Citation: Johnson v. Commonwealth Building & Loan Ass'n, 31 S.W.2d 136, 182 Ark. 226 (Ark. 1930)
• Parties: JOHNSON et al. v. COMMONWEALTH BUILDING & LOAN ASS'N et al.
• Court: Arkansas Supreme Court

31 S.W.2d 136

JOHNSON et al. v. COMMONWEALTH BUILDING & LOAN ASS'N et al.

No. 128.

Supreme Court of Arkansas.

September 22, 1930.

Appeal from Union Chancery Court; George M. Le Croy, Chancellor.

Bill of foreclosure by the Commonwealth Building & Loan Association against H. M. Johnson, Ruth Johnson, Jimmie Johnson, and others. A decree of foreclosure of the mortgage was entered, and plaintiff became the purchaser of the property and procured a writ of assistance. Motion to quash the writ of assistance and for a bill of review. From an order overruling the motion and from the decree of foreclosure, the two last named defendants appeal.

Affirmed.

T. P. Oliver and Coulter & Coulter, all of El Dorado, for appellants.

Powell, Smead & Knox, of El Dorado, for appellees.

BUTLER, J.

H. M. Johnson, some time prior to March 28, 1926, purchased a lot in El Dorado upon which was a dwelling and which, after his purchase, he occupied with his father and mother and a sister. On July 30, 1926, he borrowed $7,000 from the appellee association, to secure which he conveyed by mortgage the said property, representing to the mortgagee, and including in said mortgage the statement that he was an unmarried man. He agreed to pay to said association a stipulated sum each month, in default of which it was agreed that the mortgage might be foreclosed. Johnson failing to pay a number of said monthly installments, the association brought suit to foreclose the mortgage on May 28, 1929, alleging that since the execution of the mortgage Johnson had married, that Mrs. Jimmie Johnson (the mother of H. M. Johnson) claimed to have a deed to the property and others who were named held mortgages executed by Mrs. Jimmie Johnson and the other defendants covering the property, and that still others claimed to have judgment liens of some nature against said property, all of whom were made parties defendant, and summons was duly issued and served upon the defendants on May 29, 1929.

The defendants H. M. Johnson, T. E. Barton, and the Exchange Bank & Trust Company filed their separate answers, but none of the other defendants, including Mrs. Ruth Johnson, the wife of H. M. Johnson, and Mrs. Jimmie Johnson, his mother, filed any answer.

On November 4th the case was called for trial, and H. M. Johnson and the Exchange Bank & Trust Company appeared and confessed the justness of the claim of plaintiff and their willingness that judgment be entered against said H. M. Johnson in favor of the plaintiff association for the amount sued for, and that said judgment be decreed a first mortgage lien on the property, and that the plaintiff have a decree of foreclosure. Thereupon the court found that Mrs. Ruth Johnson, Mrs. Jimmie Johnson, and the other defendants, save those named above who made answer, had been duly summoned but had failed to appear to make defense, and rendered a judgment against them by default and against the defendants who had answered on their confession, and decreed a foreclosure of the mortgage and a sale of the property. From this decree no appeal was prosecuted.

Sale was made on December 6, 1929, at which the appellee Association became the purchaser, and on December 16, 1929, the said sale was confirmed. On January 5, 1930, a writ of assistance was procured, and on the 4th of February following H. M. Johnson, Mrs. Ruth Johnson, and Mrs. Jimmie Johnson filed their motion to quash the writ of assistance and for a bill of review, alleging that the decree was taken by default, that Mrs. Ruth Johnson at the time of the execution of the mortgage was the wife of H. M. Johnson, that the property contained in the mortgage was their homestead, and that she did not join in the execution of the mortgage which rendered the same void, and asked that the decree of foreclosure be set aside and the bill of foreclosure be dismissed.

The appellee association responded, controverting the allegations of the petition, and on a trial of the issues the petition to quash the writ of assistance and for bill of review was overruled, from which order and decree of November 4, 1929, the petitioners (appellants) have prosecuted this appeal and filed a supersedeas bond February 14, 1930.

The appellants insist that under section 5542 of Crawford & Moses' Digest, providing that no mortgage affecting the homestead of any married man shall be of any validity except for taxes and other liens and the purchase money, unless his wife joins in the execution of such instrument and acknowledges same, and by virtue of our decisions construing said statute, the mortgage under which appellee claims was and is void, and that the decree of foreclosure and the order made denying the petition for bill of review should be reversed and set aside.

The law is well settled, as contended for by the appellants, but the appellee takes the position that the appellants may not benefit thereby for a number of reasons: First, that appellants have failed to comply with rule 9 by not having furnished an abstract of the...