Ockenfels v. Boyd
| Decision Date | 27 March 1924 |
| Docket Number | 6384. |
| Citation | 297 F. 614 |
| Parties | OCKENFELS et al. v. BOYD. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Willard Pendergrass, of Altus, Ark., Charles I. Evans and Jeptha H Evans, both of Booneville, Ark., and Samuel R. Chew and David L. Ford, both of Ft. Smith, Ark., for appellants.
Thomas B. Pryor and Vincent M. Miles, both of Ft. Smith, Ark., for appellee.
Before LEWIS, Circuit Judge, and SYMES and PHILLIPS, District Judges.
Ockenfels and wife of Arkansas executed and delivered in that State a mortgage on their farm to secure their promissory note made payable to the order of Fidelity Loan & Securities Company, a Kansas corporation. Boyd of Missouri as assignee of the note brought a suit to foreclose the mortgage on default and obtained decree and order of sale, from which this appeal was taken. One of the defenses was that the note and mortgage were fraudulently procured from Ockenfels. It seems that he went to Texas with land agents to look at lands there which they had for sale, and while with them was persuaded to enter into a contract to purchase a tract at a price grossly in excess of its value on fraudulent representations, as he says; and we may say that the facts look that way. When Ockenfels came back to Arkansas he gave the note and mortgage to enable him to carry out that contract. But the evidence established beyond question or doubt that Boyd bought the note for value before maturity without any knowledge or notice of the claimed fraud. The court so found. That left the defense wholly immaterial and without force as against Boyd. Young v. Lowry, 192 F. 825, 113 C.C.A. 149; Washington & Canonsburg Ry. Co. v. Murray, 211 F 440, 128 C.C.A. 112; Bison State Bank v. Billington, 228 F. 116, 142 C.C.A. 522; H. Scherer & Co. v Everest, 168 F. 822, 94 C.C.A. 346.
Another defense was res adjudicata. It was alleged that Ockenfels and wife brought a suit in the Franklin Chancery Court, Arkansas against Fidelity Loan Securities Company and others to cancel the note and mortgage, and obtained a decree of cancellation at the December term, 1919. Boyd testified that he bought the note in May, 1919. The suit to cancel the mortgage was not brought until after July of that year, the exact date on which it was instituted not being shown, but it was returnable at the December term. When defendant offered in evidence the judgment roll in the cancellation suit it was excluded, on the ground that Boyd was not a party to that suit and therefore not bound by that decree. That this ruling was right is not debatable. The defense of res adjudicata was, therefore, not made out.
Another defense was that the suit could not be maintained because of certain provisions of the Constitution of the State of Arkansas and statutory enactment. Section 11 of Article 12 of the Constitution reads:
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