McCrite v. Hendrix College

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT, J.
• Citation: McCrite v. Hendrix College, 133 S.W.2d 31, 198 Ark. 1149 (Ark. 1939)
• Decision Date: 23 October 1939
• Docket Number: 4-5589
• Parties: MCCRITE v. HENDRIX COLLEGE

133 S.W.2d 31

198 Ark. 1149

MCCRITE v. HENDRIX COLLEGE

4-5589

Supreme Court of Arkansas

October 23, 1939

Appeal from Crawford Chancery Court; C. M. Wofford, Chancellor affirmed.

Decree affirmed.

Batchelor & Batchelor, for appellant.

Joseph R. Brown, for appellee.

OPINION

HOLT, J.

Appellee, Hendrix College, sued appellants, J. W. McCrite and Maud McCrite, in Crawford chancery court on a note executed by appellants on December 7, 1924, to W. R. Willis, trustee for the Wallace Institute, for the sum of $ 200 with interest at ten per cent., due one year from its date, and to foreclose a mortgage upon lands of appellants given to secure the payment of said note.

Appellants defendants below, in their answer admitted the execution of the note and mortgage, but specifically pleaded as a complete bar to plaintiff's right of recovery the five-year statute of limitations.

It was alleged in the complaint, and admitted in the answer, that the note and mortgage in question were transferred and assigned to appellee in February, 1934, pursuant to a decree of the Crawford chancery court.

Upon the trial of the cause the learned chancellor found that no payment of principal or interest had been made on the note since the 7th day of December, 1930, but that the defense of the five-year statute of limitations should be denied for the reason that appellee, Hendrix College, is a charitable institution. A decree was accordingly entered in favor of appellee for $ 325, and the lands covered by the mortgage ordered sold in satisfaction thereof. From this decree comes this appeal.

The record reflects the following payments on the back of the note in question: "Dec. 1, 1925, by cash (in ink) $ 20; Nov. 29, 1926, by cash (in ink) $ 20; Oct. 1, 1927, by cash (in ink) $ 20; Dec. 4, 1928, by cash (in ink) $ 20; Dec. 4, 1929, by cash (in ink) $ 20; indorsement 2-6-30 (in ink); Int. to 12-7-30 (in pencil) $ 20; indorsement of record (in pencil) 2-8-32; (in pencil) Sept. 1, '34, $ 5."

Appellee's witness, W. R. Willis, testified: "Q. There are some notations on the back of that note. Do you know anything about them? A. Yes, sir, I made them. They represent the payment of interest." And on cross-examination he further testified relative to the notation of September 1, 1934, of $ 5: "I don't know myself who paid it. It was mailed to me by letter. I don't 'know who paid it. It was mailed to me from Carnegie, Oklahoma. Q. Do you know where the defendants lived at that time? A. At Carnegie, Oklahoma. Q. How was the letter signed? A. J. W. McCrite. Q. Upon receipt of that money, you indorsed the payment on the note? A. Yes, sir. . . . Q. How many payments did you credit on this note? A. Six payments. Q. You credited all six of those payments? A. Yes, sir. Q. Can you tell us how those payments were made? A. I don't remember. The last three or four payments have been paid by money order because they were sent to me from up there in Oklahoma. Q. Do you say that all of them were sent to you from Oklahoma? A. I can't say all of them were, but some of them were sent from there. Q. You have a notation in pencil here: 'Interest to 12-7-30, $ 20.' How was that paid? A. I am sure it was by post office money order because the last three or four payments have been by post office money order. Q. Can you tell what date it was paid? A. No, sir. I have no idea. When I get them, I just get out the note--I have an idea it was somewhere near this date. When I got the money I would get the note and credit it on the back and send him a receipt for it. . . . Q. You have here in ink, 'endorsement of record 2-8-32.' What does that mean? A. This was put on the record down here--on the mortgage record."

The testimony of J. W. McCrite, one of the appellants, is to the following effect: He lived at Carnegie, Oklahoma, and never occupied the mortgaged lands personally. The last payment he made on the note was in 1931, and had not seen Mr. Willis since that time. He stated that he always paid by check and not by money order.

Appellants correctly state that there is only one question to be determined here and that is: "Is the plaintiff (appellee) barred by the Arkansas five-year statute of limitations"?

The case is tried here de novo.

Appellants earnestly insist that the trial court erred in holding that appellee, Hendrix College, is a charitable institution, and that the statute of limitations does not apply to it or run against it. In this contention, we think appellants are correct.

We find no evidence in this record that Hendrix College...