Sorrels v. Childers

• Decision Date: 14 May 1917
• Docket Number: 374
• Citation: 195 S.W. 1,129 Ark. 149
• Parties: SORRELS v. CHILDERS
• Court: Arkansas Supreme Court

195 S.W. 1

129 Ark. 149

SORRELS v. CHILDERS

No. 374

Supreme Court of Arkansas

May 14, 1917

Appeal from Pope Chancery Court; Jordan Sellers, Chancellor affirmed.

Decree affirmed.

Jas. H Johnson, for appellant.

1. The widow Sarah E. acquired a complete title by buying the Sisney note and mortgage and by foreclosing and purchasing at the sale. Sorrels became an innocent purchaser and has a valid title. The widow succeeded to all the rights of Sisney. 51 Ark. 105; 43 Id. 504; 101 Id. 543; 53 Id. 185; 27 Cyc. par. "C," p. 1207 and "E," p. 1299 and "A" 1449, etc.; 47 Ark 515; 95 Mich. 71; 54 N.W. 701; 40 Hun. (N.Y.) 376; 122 Ark 341.

2. There was no fraud and no trust created. 114 Ark. 128; 89 Id. 168.

J. T Bullock, for appellees.

1. Upon the payment of the mortgage debt and interest, appellees are entitled to recover the land. The widow merely purchased the outstanding incumbrance, and she became a trustee and could not purchase nor sell as an individual. 20 Ark. 381; 49 Id. 242; 54 Id. 627; 23 Id. 622; 89 Id. 168. Sorrels is not an innocent purchaser having full knowledge of the whole matter. 96 Ark. 573. See 20 Ark. 402; 54 Id. 627; 89 Id. 168; 96 Id. 573; 5 Johns. Chy., 407; 6 Dana. 276; 3 Id. 321; 2 Black. 618; 39 Cal. 125; Bispham Princ. Eq. , §§ 92-3; 49 Ark. 242, and cases supra.

STATEMENT BY THE COURT.

The facts in this case are succinctly stated by counsel for appellant as follows:

On the 17th day of February, 1896, G. W. Childers and Sarah E. Childers, his wife, mortgaged to A. J. Sisney a tract of land in Pope County, consisting of 120 acres, to secure the payment of a promissory note given by Childers on that date for the sum of $ 600. G. W. Childers died on the 17th of August, 1902, leaving the note, with accrued interest thereon, for more than two years, unpaid.

On the 21st of March, 1904, Mrs. Sarah E. Childers, the widow, sold a tract of land which she owned in her own right and used the money thus obtained to purchase the note and mortgage given by G. W. Childers to A. J. Sisney, and Sisney, the mortgagee, duly assigned the same to Mrs. Childers.

On the 22d of October, 1904, thirty-nine acres of the land embraced in the mortgage were sold by Mrs. Sarah E. Childers under the power of sale contained in the mortgage, and at this sale Mrs. Childers bought the land for the sum of $ 765, the amount of the note and mortgage debt with interest due to that date.

During the year 1904, Mrs. Childers was married to T. J. Holland, and some time after this marriage Holland and his wife, Sarah E., mortgaged the 39 acres which Mrs. Childers had bought at the mortgage sale to one Correthers to secure a loan obtained from him in the sum of $ 600.

On September 9, 1910, Mrs. Holland and T. J. Holland, her husband, sold the 39 acres which they had mortgaged to Correthers to A. Sorrels for the consideration of $ 2,000, and used the money thus obtained in paying off the mortgage debt on the land to Correthers and for the support of the minor children of G. W. Childers. Sorrels at the time of the purchase had full knowledge of the nature of the transaction.

This suit was instituted by Nettie T. Webb and W. A. Childers and Emma Childers in their own right and by W. A. Childers as next friend of the other appellees, who were minors, all of the appellees being the children and only heirs at law of G. W. Childers.

It was alleged in the complaint that the lands embraced in the mortgage by Childers to Sisney was the homestead of G. W. Childers at the time of his death; that thirty-nine acres of the land which Mrs. Childers sold under the power contained in the mortgage and which she purchased at such sale and afterward sold to Sorrels was a part of such homestead. They alleged that the sale to Sorrells was a fraud upon their rights; that Mrs. Childers (now Holland) did not have the title to the lands and conveyed the same without right; that she only had a lien on the lands for the sum due to repay her the amount she had paid to satisfy the original mortgage debt of G. W. Childers to Sisney; that on the death of Childers the lands embraced in the mortgage, including the land in controversy, descended to them, subject to the mortgage lien of Sisney, and that Mrs. Sarah E. Childers (now Holland), in paying off the mortgage debt, became subrogated to the rights of A. J. Sisney, and that her acts in paying off the mortgage debt and in protecting their title to the land against the mortgage was done by her as trustee and would inure to their benefit; that Sorrels was fully informed as to the condition and nature of the title at the time of his purchase and knew that such title rested in the appellees, subject alone to the mortgage lien and the homestead rights of the surviving widow and minor children of G. W. Childers. They prayed that the sale to Sorrels be set aside and that the title to the land be vested in them subject to whatever rights Mrs. Holland acquired under the mortgage and to her rights as the widow, and the rights of the minor children in the homestead.

Mrs. Holland answered, setting up substantially the facts as above stated by counsel.

Sorrels answered, denying that he knew that the fee-simple title was vested in the plaintiffs, and alleged that he purchased the lands for a valuable consideration.

The testimony developed the facts substantially as above stated, and the court, in its decree, so found, and declared that Sarah E. Childers was a trustee for the minor heirs of G. W. Childers, and that she and Sorrels acquired nothing more than an equitable lien in the purchase of an outstanding indebtedness and the mortgage securing the sum in controversy in the suit. He found that Sorrels was entitled to a balance due him in the sum of $ 671.65, and decreed the same a lien on the lands in controversy and ordered the same sold to satisfy such lien if the amount of the decree was not paid within thirty days, and the appellant brings this appeal.

OPINION

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

The contention of counsel for appellant is shown in the concluding portion of his brief, wherein he says that "Had Sisney foreclosed the mortgage under the power of sale contained in same, as Mrs. Holland did, he could have purchased all or any part of same at his sale, made himself." The conclusion of counsel is unsound for the simple reason that Mrs. Childers (afterwards Holland), as the...