Ward v. Blythe

• Decision Date: 08 November 1909
• Citation: 122 S.W. 508,92 Ark. 208
• Parties: WARD v. BLYTHE
• Court: Arkansas Supreme Court

122 S.W. 508

92 Ark. 208

WARD v. BLYTHE

Supreme Court of Arkansas

November 8, 1909

Appeal from Cross Chancery Court; Edward D. Robertson, Chancellor.

Decree affirmed.

T. E Hare, for appellants.

When no objection is made to evidence, the complaint must be considered as amended to conform to it. 29 Ark. 323; 40 Ark 352.

John B Jones, for appellee.

A stipulation in a deed of trust that the contract shall be governed by the laws of some particular State is binding on the parties thereto, although executed in another State. 64 Ark. 39; 34 Miss. 181; 62 L. R. A. 45.

T. E Hare, in reply.

Only the maker, his vendees, assigns or creditors, can plead usury. 66 Ark. 125.

OPINION

BATTLE, J.

T. S Blythe borrowed of H. C. Grigger $ 1,500, and in consideration thereof executed to him his note for $ 1,725 and ten per cent. per annum interest from maturity, the note being dated January 11, 1902, at Smithdale, Arkansas, and payable one year alter date at the First National Bank of Memphis, Tennessee. Blythe and his wife, Fannie M. Blythe, conveyed certain lands in the State of Arkansas to Joe Ward in trust to secure the payment of the note. In the deed of trust it was stipulated: "This contract embodied in this conveyance and the note secured hereby shall in all other respects be construed according to the laws of the State of Arkansas, where the same is made." The mortgage was duly acknowledged and filed for record on the 18th day of January, 1902. On the 24th day of October, 1902, Blythe sold and conveyed the land to O. N. Killough, and entered into the following agreement in writing as to such sale:

"The said T. S. Blythe guaranties the lands this day sold to O. N. Killough are incumbered only for the following amounts, for which amounts mortgages have been by him executed, to-wit: $ 3,267 of date 1-11-1902, to Crosgry, trustee, on November 15, 1903; $ 500 of date 8-12-1902, to Cross County Investment Company, due 2-12-1903; and that this is all the debts and liens against the lands, except for $ 1,725 to one Grigger, which Blythe states is usurious and void, and Blythe agrees to resist the payment of the same, provided suit is brought against him to recover. O. N. Killough agrees on his part to satisfy and pay all the liens existing at this time on the lands this day purchased of Blythe that may be declared legal."

Ward and Grigger are citizens and residents of the State of Tennessee, and Blythe and his wife are citizens and residents of the State of Arkansas.

On the 24th day of August, 1903, Ward and Grigger brought suit on the note and deed of trust in the Cross Chancery Court against Blythe and his wife, and O. N. Killough and Blanche Killough, his wife, to foreclose the deed of trust. An answer was filed for Blythe,...