Smith v. Scarborough

• Decision Date: 12 October 1895
• Citation: 32 S.W. 382
• Parties: SMITH v. SCARBOROUGH et al.
• Court: Arkansas Supreme Court

Page 382

32 S.W. 382

SMITH v. SCARBOROUGH et al.

Supreme Court of Arkansas.

October 12, 1895.

Appeal from circuit court, Logan county, in chancery; Oscar L. Miles, Special Judge.

Action by W. A. Smith against Thomas C. Scarborough and wife, Samuel M. Jarvis, and Leroy Hickson and wife, to foreclose a mortgage executed by Scarborough, in which defendant Hickson, subsequent grantee of such mortgagor, and his wife claimed such mortgage was invalid. From a decree canceling the mortgage, plaintiff appeals. Reversed.

Beardsley, Gregory & Flannelly, for appellant. A. S. McKennon, for appellees.

BUNN, C. J.

This is an action determined in the Logan circuit court, in chancery, wherein the appellant, as plaintiff in the court below, filed his bill to foreclose a mortgage of record, on the failure of the mortgagor to pay off two detached interest coupons; the principal bond and other coupons being outstanding and in the hands of other parties, referred to in the complaint. The mortgage, bond, and coupons are dated January 1, 1889, and the mortgage was acknowledged January 11, 1889, and subsequently recorded. The mortgagor, Thomas C. Scarborough, and his wife, Nannie L. Scarborough, subsequently to the execution of said mortgage or deed of trust, on the 17th day of November, 1890, made their deed to defendant Leroy Hickson, conveying to him the lands conveyed in said mortgage. The mortgagees were not made parties, but Samuel M. Jarvis, the trustee holding the legal title, was made a party, and answered, and one of the contentions of plaintiff is that all parties in interest should have been brought in; otherwise, the chancellor should not have rendered a decree canceling the deed of trust, as he did, and that the only decree he could have rendered would be to the effect that the complaint be dismissed for want of equity.

The principal question in the case, and the only one apparently considered, grows out of the allegation, in the answer of Hickson and wife, that the deed of trust is invalid for the reason that, at the time of its execution, the lands conveyed therein constituted the homestead of Scarborough and wife, — the wife not having joined in the conveyance of the homestead under the act of the general assembly approved March 18, 1887, and the deed of trust and certificate of acknowledgment in fact showing only that the wife had relinquished her right of dower, — and that Hickson had purchased from them, and held under a deed executed in accordance with the act referred to, and that therefore, having vested rights, was not affected by the curative act of April 13, 1893, as construed by this court in Sidway v. Lawson, 58 Ark. 124, 23 S. W. 648. The argument is not thus made, for defendants file no brief, but we take it that such is the theory of Hickson's contention. If it be true that the grantors in the deed of trust occupied the lands as a homestead at the time of the execution of the deed of trust, or at the time when the same took effect as a conveyance, if otherwise valid, and assuming that the act of March 18, 1887, was a valid act, and that the deed to Hickson was a valid deed, under that and the curative act mentioned, it follows that the decree as against plaintiff is proper.

But the question really is, does the record and the proof show that Scarborough occupied the lands as a homestead, or even owned the...