Merryman v. Blount

• Decision Date: 30 April 1906
• Citation: 94 S.W. 714
• Parties: MERRYMAN v. BLOUNT et al.
• Court: Arkansas Supreme Court

94 S.W. 714

MERRYMAN v. BLOUNT et al.

Supreme Court of Arkansas.

April 30, 1906.

Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor.

Suit by W. T. Merryman against Fannie B. Blount and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

J. M. Prewett, for appellant. N. W. Norton, for appellees.

WOOD, J.

This suit was begun by appellant to redeem a certain tract of land in St. Francis county from a sale made by a trustee under a deed of trust. The purchasers were the beneficiaries in the deed. The complaint contains, among others, the following allegations: "That the beneficiaries in said trust deed, L. and O. B. Rollwage, bought the land involved in this action at the sale made by the trustee, B. R. Shade, January 5, 1895, and there was no provision in the said instrument, or agreement, that they might become purchasers at their own sale, and that the said sale is for that cause void. That the persons appointed to appraise the land, before the sale by the trustee, did not enter upon and view it, after their appointment as such appraisers and before assessing its value, and that for that reason the sale is void. That plaintiff, on the ____ day of April, 1903, offered to pay and tendered to the defendant Fannie B. Blount the sum of $382.69, being the amount for which the land was sold, under the deed in trust, together with 10 per cent. interest thereon, and all costs of the sale." The prayer of plaintiff's bill is for redemption of the land, and cancellation of the several deeds, and that the sale under the trust deed be held for naught, and that the defendants be held to be mortgagees in possession, and be required to account as such, and also for a writ of assistance to place him in possession, etc.

A general demurrer to the complaint, which was sustained, presents for our consideration the following questions:

1. Did appellant have the right to redeem? The statute provides that "real property sold thereunder can be redeemed by the mortgagor within one year from the sale." The statute contains no exceptions in favor of minors, and the courts can make none. Sims v. Cumby, 53 Ark. 418, 14 S. W. 623. The statutory right of redemption is clearly indicated by the allegations of the complaint. If the sale is void for the reasons alleged in the complaint, appellant could only be barred by laches or the general statute of limitations.

2. So, is the sale void for the reason that the beneficiaries in the trust deed bought at a sale made by the trustee, where the deed of...