Wadley v. Ward
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 808,99 Ark. 212 |
| Parties | WADLEY v. WARD |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Chancery Court; George T. Humphries Chancellor; affirmed.
Decree affirmed.
W. E Beloate, for appellant.
The payment made by McBride to Ward on September 28, 1908, after the making and recording of the Wadley mortgage, was not sufficient to keep alive the lien of the Ward mortgage and make it superior to appellant's. 92 Ark. 195; 30 Ark 407; 31 Ark. 85; 69 Ark. 301; Kirby's Dig. § 5399.
A. S Irby, for appellee.
The record clearly shows that appellee kept within the requirements of the statute to make the payments he had received operative against the rights of all third parties. Kirby's Dig. § 5399.
The question involved in this case is to determine the rights and priority of two mortgagees under foreclosure proceedings instituted by them to have satisfaction of their debts under the respective mortgages executed to them on the same land by the same mortgagor.
On August 30, 1900, D. G. McBride, the mortgagor, executed to appellee his note for $ 225, due November 1, 1901, and on the same day, in order to secure the payment thereof, executed to him a mortgage on said land, which was duly recorded on the second day of November, 1900. On this note McBride made the following payments to appellee, who dully indorsed a memorandum thereof on the record where said mortgage was recorded at the time of each payment, which was duly attested and dated by the clerk, to-wit: on October 28, 1903, the sum of $ 10.48; and on September 29, 1908, the sum of $ 10.
On March 25, 1901, McBride executed to appellee a second note for $ 69.40, due November 1, 1901, and to secure the payment thereof executed to appellee a second mortgage on the same day on said land, which was duly recorded on the 27th day of March, 1901. On this second note McBride made the following payment to appellee, who duly indorsed a memorandum thereof on the record, which was duly attested and dated to-wit: on October 23, 1906, the sum of $ 10.
On March 31, 1906, said McBride executed to appellant his note for $ 300, due November 1, 1907, and to secure same executed a mortgage to him on said land, which was duly recorded on November 7, 1906. The actions to foreclose the mortgages were instituted on June 25, 1909, and McBride, who was made a party to the foreclosure proceedings, made no defense to a recovery by either mortgagee; but the appellant pleaded that the said notes which had been executed by him to the appellee were barred by the statute of limitations as against the appellant and his mortgage, and on this account that the lien of his mortgage was prior and superior to that of the mortgages of appellee.
The lower court found that the notes and mortgages which had been executed to appellee by said McBride were not barred by the statute of limitations, and declared that the lien thereof on said land was prior and superior to that acquired by appellant by virtue of his mortgage, and entered a decree accordingly.
It is conceded by counsel for appellant upon this appeal that the note and mortgage executed by McBride to appellee on March 25, 1901, for $ 69.40, are not barred, and that the lien acquired upon the land for payment of said note is prior and superior to appellant's mortgage. But it is contended that the note and mortgage executed to appellee by McBride on August 30, 1900, for $ 225, is not prior or superior to the mortgage of appellant, for the reason that the payment of September 29, 1908, was made after the execution and record of the mortgage by McBride to appellant, and that after the execution of such subsequent mortgage McBride did not have the power to toll the statute in favor of appellee's mortgage or to keep alive appellee's debt as against appellant's rights and mortgage.
It is well settled that, as against the debtor, partial payments made by him to his creditor will stop the running of the statute of limitations and mark the time from which the statute then begins to run; and the general rule is that the partial payment of a debt, which will prevent the statute of limitations from running against it, will also prevent the statute from running against the remedy on the security. Chase v. Carney, 60 Ark. 491, 31 S.W. 43; Less v. Arndt, 68 Ark. 399, 59 S.W. 763; McAbee v. Wiley, 92 Ark. 245, 122 S.W. 623; Clift v. Williams, 105 Ky. 559, 49 S.W. 328. The statute of limitation that is applicable to a debt evidenced by a note is five years. Kirby's Digest, § 5069.
Whether or not a mortgagor can keep alive and continue the lien of a prior mortgage after he has conveyed the premises or mortgaged them to a third person has been differently decided by the courts of different jurisdictions. In some courts it has been held that the mortgage is only an incident of the debt, and that the mortgagee is not required to learn or inquire what disposition the mortgagor has made of the equity of redemption when payments are made to him from time to time by the mortgagor. By these courts it is held that all subsequent purchasers and mortgagees have notice of the existence of such prior mortgage by virtue of the record thereof, and they should also take notice of the usual course in business of making partial payments thereon, and of the legal effect thereof, and that until the debt is barred by the statute of limitations the mortgage is effective against all third persons in the same manner as it is against the mortgagor. Hughes v. Edwards, 9 Wheat. 489; Murdock v. Waterman, 145 N.Y. 55, 39 N.E. 829.
By other courts it has been held that, as against the subsequent purchaser or incumbrancer, the mortgagor has no power to prolong the time of the payment of the prior mortgage debt or to prevent the running of the statute of limitations against the prior mortgage after the execution of the subsequent deed or mortgage. Lord v. Morris, 18 Cal. 482; George v. Butler, 57 L.R.A. 396; 2 Jones on Mortgages, § 1207.
But, prior to the enactment of section 5399 of Kirby's Digest, which was passed in 1889, this court held that seven years' continuous adverse possession was necessary in order to bar an action to foreclose a mortgage upon real property, and that such continuous adverse possession for seven years was necessary in order to make available the plea of the statute of limitations, whether made by the mortgagor himself or by a subsequent grantee or mortgagee. Ringo v. Woodruff, 43 Ark. 469; Whittington v. Flint, 43 Ark. 504.
In the case of Whittington v. Flint supra, it was held that ...
To continue reading
Request your trial
-
Keota Mills & Elevator v. Gamble
...on a note, after the bar of the statute has become complete will revive the cause of action upon it. Similarly, in Wadley v. Ward, 99 Ark. 212, 137 S.W. 808, 809 (1911), the Supreme Court of Arkansas, when addressing the limitations period on a defaulted mortgage stated:It is well settled t......
-
Buckner State Bank v. Stager
... ... Pope's Digest, applies. That it does apply is the point ... expressly decided in the Connelly case, supra. See, ... also, Wadley v. Ward, 99 Ark. 212, 137 S.W ... 808; Bank of Mulberry v. Sprague, 185 Ark ... 410, 47 S.W.2d 601 ... By this ... § 9465, ... ...
-
Connelly v. Hoffman
... ... reference to the particular incumbrance will evidence an ... intention to recognize it." The decision of this court ... in Wadley v. Ward, 99 Ark. 212, 137 S.W ... 808, cited by appellant, is not contrary to the principles ... announced in this and other later cases. Hoffman ... ...
-
Rogers v. Atkinson
...was not barred, notwithstanding the statute of limitations. 5 Ark. 551; 19 Ark. 692; 20 Ark. 171; 97 Ark. 217; 92 Ark. 245; 75 Ark. 603; 99 Ark. 212. jury having found in favor of the plaintiff for the amount of the note, he was also entitled to interest on same. 77 Ark. 234; 100 Ark. 395. ......