Neff v. Elder

• Decision Date: 04 November 1907
• Citation: 105 S.W. 260,84 Ark. 277
• Parties: NEFF v. ELDER
• Court: Arkansas Supreme Court

105 S.W. 260

84 Ark. 277

NEFF v. ELDER

Supreme Court of Arkansas

November 4, 1907

Appeal from Fulton Chancery Court; George T. Humphries, Chancellor reversed.

STATEMENT BY THE COURT.

This is an appeal from a decree of the Fulton Chancery Court dismissing for want of equity the complaint of J. T. Neff filed against B. F. Elder, J. E. Ford and H. H. Simon. The prayer of the complaint is to set aside a certain conveyance to the defendants, by a commissioner in chancery or to have the plaintiff subrogated to the lien of a mortgage on the real estate in controversy, which mortgage the plaintiff alleges that he paid off.

On October 4, 1898, G. W. Lane and wife, being the owners of certain lots in the town of Mammoth Spring, Arkansas (the lots in controversy being of the number), conveyed the same to one Frank Curtis by warranty deed reciting a cash consideration of $ 1,000 paid. The evidence shows that the real consideration for the conveyance was a conveyance by Curtis to Lane and his wife of certain lands in Illinois owned by Curtis.

On July 13, 1899, Curtis and his wife executed to one A. L. Pixley a mortgage on the lots in controversy to secure the payment of a note for the sum of $ 810.34 due and payable on October 13 1899, with interest. This mortgage was duly acknowledged, and was filed for record the day succeeding its execution. The note secured by the mortgage was assigned, so the complaint alleges, by the mortgagee, A. L. Pixley, to one A. J Robinson, who in turn assigned it, as collateral security, to defendant Simons.

On February 9, 1900, Curtis and wife executed to said Robinson a deed conveying to the latter their equity of redemption in the lots in controversy; and on September 13, 1901, Robinson conveyed the lots to plaintiff, J. T. Neff, for a consideration of $ 2,000 paid at the time. Robinson informed Neff at the time of the negotiation for the conveyance that he held the Pixley mortgage on the lots for $ 810.34, and would satisfy the same out of the money paid him for the lots, which he subsequently did and sent the note and mortgage to Neff marked satisfied. He also indorsed satisfaction on the record Of the mortgage. The mortgage was at that time held by a bank as collateral security. Possession was taken by Neff pursuant to his deed of conveyance.

On August 7, 1899, Lane and wife commenced suit in the chancery court of Fulton County against Curtis and wife to recover the amount of $ 244.19 and interest thereon alleged to have been paid by those plaintiffs (Lane and wife) in discharging a certain lien for taxes and other things on the Illinois property conveyed by them to Curtis. They alleged in their complaint that Curtis had agreed, as a part of the consideration of the conveyance from Lane and wife to him of the Arkansas property, to discharge these liens on the Illinois property, and they asserted a vendor's lien on the Arkansas property as a part of such consideration.

Neither the mortgagee, nor the assignee of the mortgage debt, nor the subsequent purchaser Robinson, nor Neff, were made parties to that suit. A decree was duly rendered in that suit at the February term, 1903, in favor of the plaintiffs therein, Lane and his wife, against Curtis for recovery of $ 326, and a lien was declared on the real estate described in the conveyance from Lane to Curtis, and the commissioner of the court was ordered to make sale thereof to satisfy the decree.

The two lots in controversy were sold by the commissioner at public outcry to defendants, Elder, Ford and Simons, on May 7, 1903 for the sum of $ 328, and at the next term of the court the sale was confirmed. They subsequently took possession of the property from Neff's tenant, he being absent from the State.

The complaint alleges that the sale by the commissioner was irregular and void on account of an irregularity in the advertisement, and that the defendants conspired together to purchase the property at the reduced price of $ 328, when it was worth $ 3,000.

Defendants Elder and Ford filed their joint answer, denying all the allegations of the complaint; and defendant Simons filed a separate answer, disclaiming any interest in the subject-matter of the litigation and alleging that he had conveyed his interest in the lots to his co-defendants, Elder and Ford.

The plaintiff at a subsequent term presented his petition to be allowed to file a bill of review against the decree of the court in the Lane suit confirming the sale to defendants, and the court refused to allow the bill of review to be filed. The bill of review set forth in attack upon the commissioner's sale the same matter as that alleged in the main action.

Decree reversed and cause remanded.

C. E. Elmore, P. H. Crenshaw and Campbell & Stevenson, for appellant.

1. On the amended complaint plaintiff was entitled to be subrogated to the lien of the Pixley mortgage. Neff was not a party to Lane v. Curtis, and not bound by the decree and sale. Kirby's Digest, § 5396, 4438; 17 Ark. 203; 23 Id. 336; 25 Id. 365;..20 Id. 629; 123 A. 291; 39 Ark. 205; 59 Id. 15. The doctrine of merger has no application. 37 Ark. 132, 144; 63 Id. 625; 1 Jones on Mort. (4 Ed.), § 848, 870, 874. When a person furnishes money with which a mortgage is paid off, and the security becomes valueless, or under an agreement to convey the land, he is entitled to be subrogated to the lien of the mortgage paid off with his funds. 72 Miss. 1050 (30 L. R. A. 829); 75 Wisc. 191; 6 L. R. A. 61; 73 Miss. 787; 32 L. R. A. 631; 68 Ark. 369, 375; 68 Id. 449.

2. It was error to deny leave to file the bill of review. 33 Ark. 161; 21 Id. 528; 32 Id. 753. The publication of notices of judicial sales must set forth "the time and place of sale" in the published notice. Kirby's Digest, § 3275. Where the advertisement of sale describes the land defectively or ambiguously, the sale is void. 60 Ark. 487; 59 Id. 460; 73 Id. 37, 42.

Sam H. Davidson and R. B. Maxey, for appellees.

1. An exhibit is not evidence nor part of the pleadings. The title deeds or next best evidence must be read. 37 Ark. 542.

2. A purchase pendente lite and while property is in custodia legis is utterly void. 11 Ark. 411. The purchaser takes nothing, even if he pays full value without notice of lis pendens. 12 Ark. 421; 16 Id. 175; 11 Id. 411. He is affected by all the equities attaching to the subject-matter. 30 Ark. 249; 31 Id. 491. The decree binds privies, and pendente lite purchasers are privies. 34 Ark. 291; 57 Id. 97; 57 Id. 227; 50 Id. 551.

There was no evidence of fraud on the part of appellees in the sale or confirmation, and the court could presume none. 53 Ark. 113. The decree became final at the end of the term. 33 Ark. 454. The confirmation was not affected by a right acquired by purchaser pendente lite. 56 Ark. 194. A subsequent purchaser or incumbrancer can only acquire title by paying off note for purchase money. 16 Ark. 145. Neff purchased while vendor was endeavoring to enforce his lien by suit. A vendor has a lien against vendee and heirs, and privies, and also against all subsequent purchasers with notice, etc. 18 Ark. 142; 21 Id. 202. A confirmation of a sale raises a presumption of regularity in same which will prevail where evidence is conflicting. 75 Ark. 9 See 29 Ark. 307. The Robinson deed is not in the case at all. It was wrongfully recorded. The word "consideration" is omitted from the acknowledgment. 46 Ark. 58; 33 Id. 600.

2. The so-called bill of review is not entitled to consideration for any purpose. 80 Ark. 583; 26 Id. 600; 22 Wall. U. S. 532; 57 Miss. 465; 17 Ark. 45; 2 Tenn. Chy. 699; Fletcher, Eq. Pl. & Pr. § 921; 32 Ark. 753. Leave must be obtained. Fletcher, Eq. Pl. & Pr. § 937; 36 Ark. 532. None but parties and privies can file bill of review, and all parties to the original decree are, in general, necessary parties, 100 U.S. 605; 95 Id. 391; 1 Lea (Tenn.), 232; 88 Ill. 207. The bill will not lie for an assignee. 95 U.S. 391; 83 Va. 242; 89 Id. 524.

3. Plaintiff barred by laches and limitation. Kirby's Digest, § 5399, 5069.

OPINION

MCCULLOCH, J., (after stating the facts).

1. The chancellor was right in refusing to allow the bill of review to be filed or to decree a cancellation of the sale to appellees, Elder, Ford and Simons. No grounds were shown for such relief. The only irregularity shown in the sale was a mistake in the commissioner's advertisement of sale wherein the date was given as June 1, 1093, instead of 1903. This was a trivial irregularity in the notice, and no one could have been misled by the mistake. It was cured by the confirmation of the court. No proof was adduced tending to show collusion between the purchasers at the sale to stifle competition.

The suit was commenced by Lane and wife before the alienation of the property by Curtis (except his mortgage to Pixley, which will be hereafter discussed in this opinion), and subsequent purchasers from him were charged with the notice of the pendency of the suit.

2. Is the appellant Neff entitled to subrogation to the lien of the Curtis mortgage? This mortgage was executed prior to the commencement of the Lane suit against Curtis, and neither the mortgagee, Pixley, nor the assignee thereof, was chargeable with notice of the pendency of that suit. The mortgage being good as to Pixley, his assignees are protected, even though the suit was pending at the time of the several transfers of the debt and mortgage.

The alleged vendor's lien of Lane and wife which was not expressed in the face of their deed, if it can be held that they had lien at all, even against the grantor Curtis, was not available against subsequent purchasers without actual notice. Scott v. Orbison, 21 Ark. 202; Holman v. Patterson, 29 Ark. 357.

The evidence...