Merriott v. Kilgore

• Decision Date: 15 April 1940
• Docket Number: No. 4-5918.,4-5918.
• Citation: 139 S.W.2d 387
• Parties: MERRIOTT v. KILGORE.
• Court: Arkansas Supreme Court

139 S.W.2d 387

MERRIOTT v. KILGORE.

No. 4-5918.

Supreme Court of Arkansas.

April 15, 1940.

Rehearing Denied May 13, 1940.

Appeal from Saline Chancery Court; Sam W. Garratt, Chancellor.

Suit by the Federal Land Bank of St. Louis against J. D. Kilgore, J. T. Merriott, and others, to foreclose a mortgage executed by J. D. Kilgore, wherein J. T. Merriott filed a cross-complaint against the Federal Land Bank of St. Louis and J. D. Kilgore, claiming to be the owner of ten acres of realty described in the complaint. J. D. Kilgore filed no answer, and J. T. Merriott and the Federal Land Bank of St. Louis agreed that J. T. Merriott would pay the Federal Land Bank of St. Louis $50, and that a decree would be entered quieting title in him for the ten acres. The agreement was carried out, and a decree was rendered quieting title. Thereafter J. D. Kilgore filed a motion to vacate the decree, and J. T. Merriott filed a response to the motion. From a decree setting aside the former decree, J. T. Merriott appeals.

Decree reversed, and cause remanded with directions to dismiss the motion.

J. B. Milham, of Benton, for appellant.

Leland F. Leatherman, of Hot Springs, for appellee.

MEHAFFY, Justice.

In September, 1936, the Federal Land Bank of St. Louis filed suit in the Saline county chancery court against J. D. Kilgore to foreclose a mortgage which Kilgore had made to it to secure an indebtedness of approximately $3,000. The mortgage included something like 270 acres of land in Saline county and a number of persons were made defendants in the foreclosure suits, among them J. T. Merriott, appellant.

Appellant filed answer in the foreclosure suit on January 7, 1937, and a cross-complaint against the Federal Land Bank and J. D. Kilgore, in which he alleged that he was the owner of ten acres of the land described in the complaint, being the North half of the North half of the Northwest quarter of the Northeast quarter of section 12, township 1 south, range 18 west; that he had owned and occupied said land for the past twenty years, paid taxes thereon, built fences, and denied that the mortgage covered this land; but stated that in case said mortgage covers said land, the mortgage is a cloud upon his title, and the same should be canceled in so far as it effects this ten acres of land.

The Federal Land Bank served J. D. Kilgore with summons September 29, 1936. All of the defendants in the foreclosure suit were served with summons.

J. D. Kilgore filed no answer, and made no appearance in the suit, and the attorney for J. T. Merriott and the attorney for the Federal Land Bank agreed that Merriott would pay to the bank $50 and a decree would be entered quieting the title in said Merriott. This agreement was carried out, the $50 paid to the land bank, and a decree rendered. The Federal Land Bank gave J. D. Kilgore credit on his note and mortgage for the $50 paid by Merriott, and with this $50 and some additional money paid to the Federal Land Bank, it took a non-suit and gave Kilgore more time in which to pay his debt.

Thereafter the bank filed a new foreclosure suit against J. D. Kilgore, foreclosed the mortgage, bought the land in for the judgment and costs.

The decree quieting and vesting the title to the ten acres in Merriott was rendered on May 17, 1937. On March 18, 1939, nearly two years after the decree, the motion in this case was filed in the original suit to set aside the decree in which the title to the ten acres was quieted in Merriott, stating in the motion that the court was without jurisdiction.

The decree quieting title in Merriott recites that Kilgore had been served with summons, but that he made default and that the cause was submitted to the chancellor upon the cross-complaint of Merriott, and oral testimony before the court introduced on behalf of Merriott, and the court found that the ten acres belonged to Merriott and should be held free and clear from any lien or incumbrance by reason of the mortgage.

The motion filed by Kilgore to vacate the decree reads as follows:

"Comes now the defendant, the above named J. D. Kilgore, appearing specially for this purpose, and moves the court to set aside and vacate the decree rendered in this cause in favor of the cross-complainant, J. T. Merriott, and against the above named cross-defendant, J. D. Kilgore, on the 17th day of May, 1937, in which it was decreed that the title to the following described land was vested and quieted in cross-complainant, J. T. Merriott, to wit:

"The North-half of the North-half of the Northwest Quarter of the Northeast Quarter of Section 12, Township 1 South, Range 18 West; in Saline County, Arkansas, containing 10 acres more or less; Said decree appears of record in Chancery Record `I' at page 207, of Saline County, Arkansas.

"And as ground for such relief shows to the court:

"1. That the court was without jurisdiction to render said decree.

"2. That no process or order of court was issued by the clerk on said cross-complaint.

"3. That no process or order of court issued on said cross-complaint was served on this defendant either actually or constructively.

"4. That no summons was issued by the clerk on said cross-complaint.

"5. That this cross-defendant was not actually or constructively summoned to answer said cross-complaint.

"6. That this cross-defendant had no actual notice of the filing and pendency of the said cross-complaint.

"7. That this cross-defendant has a good, valid and meritorious defense to said cross-complaint in that the cross-complainant has not and had not at the commencement of the cross-action any legal or equitable estate in, nor is or was he entitled to the possession of said described real estate; and that the cross-defendant is and was the legal and equitable owner of said real estate above described and is in the possession thereof.

"8. That the cross-complainant ought not to have or maintain his aforesaid cross-action against this cross-defendant, because he says that a judgment was rendered for the same cause of action, to-wit, at the term of the circuit court of Saline county, begun and held at Benton within and for the county of Saline on the 12th day of December, 1931; a record whereof remains in the circuit clerk's office; and this the cross-defendant is ready to verify by...