Ogden v. Watts

• Decision Date: 21 November 1932
• Docket Number: 4-2738
• Citation: 54 S.W.2d 292,186 Ark. 500
• Parties: OGDEN v. WATTS
• Court: Arkansas Supreme Court

54 S.W.2d 292

186 Ark. 500

OGDEN v. WATTS

4-2738

Supreme Court of Arkansas

November 21, 1932

Appeal from Hempstead Chancery Court; C. E. Johnson, Chancellor reversed.

Decree reversed, and cause remanded.

Gentry & Gentry, for appellant.

OPINION

SMITH, J.

On May 21, 1921, Henrietta Colter, being indebted to Emma Anderson executed a note to evidence the debt and a mortgage, of even date, to secure its payment one year after date. The mortgagor died intestate and childless on December 9, 1929. After executing the note and mortgage, the mortgagor married Preston Watts, who furnished his wife the money with which to pay the note, but he took no assignment thereof until December 14, 1929, which was subsequent to the date of the death of his wife. On the last-mentioned date Watts took an assignment of the note and mortgage to himself, and on September 2, 1931, brought suit against the heirs of his wife to foreclose the mortgage. No payments had been indorsed upon the note.

An answer was filed by Ogden, who alleged that he had acquired the interests of the heirs of Henrietta Colter. This answer alleged the note was barred by the statute of limitations. Other defenses were also set up, which we do not consider as, in our opinion, the suit was barred by the statute of limitations at the time it was filed.

The court below found that the note was barred by the statute of limitations at the time it was paid, but it appears to have been the view of the chancellor that, having furnished the money with which to pay the note and the mortgage at the request of his wife, the mortgagor, plaintiff was entitled to a lien on the land for the money paid, against which sum the rent of the property subsequent to the death of plaintiff's wife was charged him and credited on the debt claimed by him, and this appeal is from that decree.

It is conceded that, under act 149 of the Acts of 1925, page 441 entitled, "An act to abolish curtesy in this State," the plaintiff--the husband--had an interest in the mortgaged property upon the death of his wife intestate, and that to protect this interest he had the right to be subrogated to any subsisting lien which he was required to discharge, and had discharged, to protect that interest. He was not a volunteer. Charmley v. Charmley, 125 Wis. 297, 103 N.W. 1106, 110 Am. St. Reps. 827; Spurlock v. Spurlock, 80 Ark. 37, 96 S.W. 753; Jefferson v. Edrington, 53 Ark. 545, 14 S.W. 903; McDaniel v. Conlan, 134 Ark. 519, 204 S.W. 850.

It is the law, however, as is very clearly stated in Charmley v. Charmley, supra, that the right acquired by the party thus subrogated is to use the...