Kenney v. Streeter

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Kenney v. Streeter, 114 S.W. 923, 88 Ark. 406 (Ark. 1908)
• Decision Date: 14 December 1908
• Parties: KENNEY v. STREETER

114 S.W. 923

88 Ark. 406

KENNEY v. STREETER

Supreme Court of Arkansas

December 14, 1908

Appeal from Crawford Chancery Court; J. Virgil Bourland, Chancellor affirmed.

STATEMENT BY THE COURT.

On the first day of April, 1890, appellant, D. S. Kenney and his wife, Abbie L. Kenney, executed to the Topeka Investment & Loan Company their promissory note due and payable five years after date to said company for the sum of $ 700, together with interest thereon at the rate of eight per cent. per annum until paid, interest payable semi-annually on the first days of October and April each year thereafter according to the tenor of ten interest notes of twenty dollars each. This note was indorsed in blank without recourse by said Loan Company to appellees.

On the first day of April, 1890, to secure the payment of this note appellant D. S. Kenney, and his wife, Abbie L. Kenney executed their mortgage and deed of trust on the following lands lying in Crawford County, to wit: The N.W. 1/4 of the N. E. 1/4 and the N. E. 1/4 of the N.W. 1/4, section 5 township 9, range 31, to secure the payment of said note.

This mortgage was duly recorded in the office of the recorder of deeds and mortgages in Crawford County on said first day of April, 1890.

There was a default in the payment of this note and some of the interest coupons, whereupon appellees filed their complaint in the Crawford Chancery Court to foreclose this mortgage making D. S. Kenney, Abbie L. Kenney, S. F. Kenney and J. H. Durham defendants. The first, second, third and fourth paragraphs of the complaint allege execution of the notes and the mortgages to secure them, the recording of the mortgage, and the transfer before maturity and for value of the note for the principal and the interest coupon notes, together with the deed of trust securing same, to the plaintiff, appellee A. W. Streeter. The payments made and indorsed on the note are set forth, and it is averred that the principal debt, together with the interest at the rate of ten per cent. per annum, less the payments mentioned, is due and unpaid.

The sixth paragraph of the complaint is as follows: "The plaintiffs further state that on the 13th day of January, 1902, the said defendants Daniel S. Kenney and Abbie L. Kenney, his wife, sold and conveyed to defendant S. F. Kenney, who is a son of the said Daniel S. and Abbie L. Kenney, the said described lands set forth in the said deed of trust for an expressed consideration of one dollar, giving their quitclaim to the same; that the defendant S. F. Kenney purchased said lands of Daniel S. and Abbie L. Kenney with full knowledge of the said deed of trust, and that the same was a valid subsisting lien on the said land; that the assumption of the payment of said indebtedness by him was the real consideration for the conveyance of said land by the said Daniel S. and Abbie L. Kenney, and that the said S. F. Kenney in writing assumed the payment of said notes and interest, and that he, the said S. F. Kenney, made all payments that were made thereon subsequent to the 13th day of April, 1897, as hereinbefore particularly set forth."

The prayer was for judgment for the amount of the notes and the interest, and for a short time to be given for its payment, and unless same were paid within the time specified that the mortgage be foreclosed to satisfy the judgment, and for all other relief to which plaintiffs were entitled.

The answer of appellant S. F. Kenney set up that he was in possession of the land by virtue of a quitclaim deed from D. S. Kenney and Abbie L. Kenney, his wife, executed on the 13th day of January, 1902, that, prior to the execution of said deed, plaintiffs were barred of their right of action to foreclose the mortgage executed on the 1st of April, 1890, by Daniel S. and Abbie L. Kenney to C. S. Gleed, trustee, etc., because no one for plaintiffs' appellees, or either of them, had entered on the margin of the record of the mortgage any credits paid on the mortgage within five years, and appellant pleaded the five years statute of limitation of March 29, 1899. The cause was submitted to the chancellor upon the pleadings and exhibits, the note and mortgage, and upon an agreed statement of facts containing certain letters of D. S. Kenney and S. F. Kenney written to A. W. Streeter, appellee, between February 14, 1898, and January 21, 1906, and including those dates. In addition to the letters, the agreed statement showed that "S. F. Kenney purchased the lands mentioned in the mortgage of Daniel S. Kenney and his wife, Abbie, with actual and full knowledge of the existence of said mortgage, and took deed from them for same; that there is no provision to pay the mortgage debt mentioned in the deed from Daniel S. Kenney and his wife to appellant S. F. Kenney; that no indorsements of any payments with date thereof had been made on the margin of the record where the mortgage complained of is recorded."

The chancellor rendered a decree in favor of the appellee, Streeter, for the sum of $ 1186.15, with interest thereon at ten per cent. from the date of the decree, and ordered and decreed that the mortgage be foreclosed, and the land sold to satisfy the judgment. A commissioner was appointed to make the sale.

From this decree this appeal has been duly prosecuted.

Sam R. Chew, for appellant.

1. There is nothing in the record to justify a personal judgment against S. F. Kenney. It nowhere appears that he was connected with the original undertaking. True, the bill alleges that the real consideration for the conveyance to him was the assumption of the debt, and that he had in writing assumed the payment of the note, but the proof does not sustain these allegations. The agreed statement of facts affirmatively shows to the contrary; and nowhere in the letters written did he expressly agree to pay the debt of his father. Therefore they are not sufficient to take the agreement out of the statute of frauds. Kirby's Digest, § 3654; 61 Ark. 613; 45 Ark. 67; 52 Ark. 174; 76 Ark. 292; 12 Ark. 174; 18 Am. Dec. (Ala.) 36; 23 Ala. 591; 33 Ala. 106.

2. The action on the debt and mortgage is barred, no indorsement of payments having been entered on the margin of the record where the mortgage was recorded within the time allowed by law. Kirby's Dig., § 5399; 64 Ark. 317. Appellant being an interested third party, the mortgage as to him is void, and it is not material that he had knowledge of the existence of the mortgage. The statute makes no exceptions, and the court cannot interpolate terms into a statute not there in express words or by necessary implication. 44 Ark. 301; 57 Ark. 611.

Jesse Turner and L. H. Southmayd, for appellees.

1. The...