Ward v. Jackson

• Decision Date: 20 January 1930
• Docket Number: (No. 90.)
• Citation: 23 S.W.2d 261
• Parties: WARD et al. v. JACKSON et al.
• Court: Arkansas Supreme Court

23 S.W.2d 261

WARD et al. v. JACKSON et al.

(No. 90.)

Supreme Court of Arkansas.

January 20, 1930.

Appeal from Lawrence Chancery Court; A. S. Irby, Chancellor.

Suit by T. W. Jackson against W. E. Ward, in which J. A. McClusky was appointed receiver and Clarence Jackson applied for a writ of assistance dispossessing Joe Wilson as tenant of mortgaged land after foreclosure decree. From an order granting the writ, Wilson appeals. Reversed, and remanded with directions.

W. E. Beloate, of Walnut Ridge, for appellants.

Smith & Blackford, of Walnut Ridge, for appellees.

SMITH, J.

This suit was filed by T. W. Jackson on December 10, 1928, to foreclose a mortgage which W. E. Ward had executed on a 40-acre tract of land owned by him, and a default decree was rendered on January 3, 1929, in which a commissioner was appointed to sell the land in satisfaction of the debt secured by the mortgage.

The complaint alleged that the conditions of the mortgage had not been performed, and that the property was insufficient to pay the mortgage debt, and upon these allegations a receiver was appointed with directions to take charge of the land and rent it for the year 1929, and J. A. McClusky was appointed receiver.

In September, 1928, Ward rented about 25 acres of the land to Joe Wilson for the year 1929. Wilson was then a tenant on the place, and had been for several years. Pursuant to the contract between Ward and Wilson for the cultivation of the land in 1929, Wilson sowed about 4 acres in oats in September, 1928, and made other preparations and arrangements to cultivate the land in 1929. Wilson was not a party to the foreclosure suit in which the receiver was appointed.

On March 6, 1929, the receiver filed with the court a report, in which he recited that pursuant to his appointment he had entered into a contract with Clarence Jackson as a tenant to cultivate all the land in 1929, and on March 1, 1929, Clarence Jackson gave Wilson notice that he would apply on March 6th to the court for a writ of assistance under which he might be put in possession of the land. Testimony was taken on the hearing of this application, and the court ordered the writ to issue dispossessing Wilson and placing Clarence Jackson in possession, and this appeal is from that order. Wilson gave a supersedeas bond and remained in possession. Before this order directing that Wilson be dispossessed was made, but after the appointment of the receiver, Ward obtained a loan on the security of the land and the 1929 rent with which to pay the mortgage debt, and the mortgage was canceled.

The rights of a mortgagee under conditions alleged in the complaint are well defined and are fully stated in the following cases: Gailey v. Ricketts, 123 Ark. 18, 184 S. W. 422; Oliver v. Deffenbaugh, 166 Ark. 118, 265 S. W. 970; Osburn v. Lindley, 163 Ark. 260, 259 S. W. 729; Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859, 271 S. W. 952; Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634, 635; Wood v. Bigham, 170 Ark. 253, 279 S. W. 779; O'Connell v. St. Louis Joint Stock Land Bank, 170 Ark. 778, 281 S. W. 385.

It is unnecessary to review these cases, and it will suffice to say that the appointment of a receiver was not improper, and his right to collect the 1929 rent under the allegations of the complaint was clear if this had been necessary to discharge the mortgage debt. But the instant case does not involve the right to collect the 1929 rent. There is involved only the question of the right of possession. There would have been no question about the receiver's right to collect the rent from Wilson for 1928 had this been necessary to pay the mortgage debt. But this is not necessary; the debt had been paid and the mortgage...