Robertson v. Robertson

• Decision Date: 25 January 1960
• Docket Number: No. 5-2032,5-2032
• Citation: 331 S.W.2d 102,231 Ark. 573
• Parties: C. B. ROBERTSON, Appellant, v. Lester ROBERTSON, Admr., Appellee.
• Court: Arkansas Supreme Court

Page 102

331 S.W.2d 102

231 Ark. 573

C. B. ROBERTSON, Appellant, v. Lester ROBERTSON, Admr., Appellee.

No. 5-2032.

Supreme Court of Arkansas.

Jan. 25, 1960.

Kenneth Coffelt, Little Rock, for appellant.

Ben M. McCray and John L. Hughes, Benton, for appellee.

McFADDIN, Justice.

Appellant was the plaintiff in the Trial Court and we will so refer to him in this opinion. He sued the administrator of his father's estate seeking to foreclose a mortgage for an alleged balance due on a note. When the plaintiff rested, the Trial Court dismissed the case on motion of the defendant; and from such dismissal there is this appeal. The case of Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225, is applicable here; so we give the plaintiff's evidence its strongest probative force.

Plaintiff filed suit in 1959 seeking to foreclose a real estate mortgage. He testified that on December 7, 1936 his parents, Mr. and Mrs. J. B. Robertson, executed to him their negotiable promissory note for $1,435 due on or before five years after date and bearing interest at the rate of 8% per annum; and that said note was secured by a mortgage executed by Mr. and Mrs. Robertson on certain real estate in Saline County. The mortgage was duly recorded on the same date it was executed. Plaintiff also testified that he borrowed $200 from Mrs. Earl Diemer and transferred the note and mortgage to her as security; that Mrs. Diemer later transferred the note and mortgage to plaintiff's brother, Hugh Robertson; that plaintiff had offered to repay Hugh Robertson the $200 and interest that plaintiff owed Mrs. Diemer, but that Hugh Robertson was somewhere in South America and had never received the money and never transferred or delivered the note and mortgage to the plaintiff. Plaintiff also testified that for many years he had been collecting rent from the tenant on the mortgaged land. The plaintiff offered to pay into the Court the amount of principal and interest that he said he might owe Hugh Robertson on plaintiff's indebtedness to Mrs. Diemer. Neither the original note nor the mortgage, from J. B. Robertson and wife to plaintiff, was ever introduced in evidence; but the certified copy of the record, where the mortgage was recorded, was duly introduced; and on the margin of the record of the mortgage there appeared these--and only these--endorsements:

'12/7/36 Assigned to Mrs. Earl Diemer without recourse for valuable consideration. C. B. Robertson.'

'The within mortgage and notes contained herein is this 10th day of November, 1937 assigned to Hugh Robertson without recourse, and all my right title, and interest that I have in the within mortgage. Mrs. Earl Diemer.'

Did all of the plaintiff's evidence, given its strongest probative force, make a case that would support a foreclosure decree in his favor? The Trial Court answered this question in the negative, and we agree with the Trial Court. Plaintiff, on December 7, 1936, received a note and mortgage from his parents, but the same day he assigned the note and mortgage to Mrs. Earl Diemer 'without recourse for valuable consideration'. The transfer of the note carried with it the security--i. e., the mortgage lien. Lehman v. First National Bank, 189 Ark. 604, 74 S.W.2d 773; Purcell v. Vincent, 211 Ark. 489, 200 S.W.2d 970. Thus plaintiff divested himself of ownership of the note and mortgage; and until...