Ward v. Stark
Decision Date | 12 July 1909 |
Citation | 121 S.W. 382,91 Ark. 268 |
Parties | WARD v. STARK |
Court | Arkansas Supreme Court |
Appeal from Greene Chancery Court; Edward D. Robertson, Chancellor affirmed.
Decree affirmed.
Huddleston & Taylor, for appellants.
1. Mrs Ward was not present when the instrument was executed, but if she was she did not sign it except by mark, and there were no witnesses to signature. Kirby's Dig., § 7799; 60 Ala. 293.
2. The instrument does not describe the land, and is void for uncertainty. Besides, the fruit tree contract is not a mortgage. Washburn on Real Prop., § 475. There is no granting clause; no habendum clause; no warranty clause or covenants; no defeasance clause. It is nothing more than a pledge, and the record of it is not notice. 33 Ark. 77; 23 Minn. 454; 11 Id. 475; 78 S.W. 340.
3. The mortgage was not properly executed nor acknowledged under the homestead act, and is void. 33 Ark. 722; Kirby's Dig § 3901; 26 Ark. 128; 32 Id. 453; 53 Id. 53; 57 Id. 242; 112 S.W. 892; 66 Ark 226; 70 Id. 166; 82 Id. 209; 60 Id. 277; 3 Man. & G. 742. The word "stated" is not equivalent to "acknowledged." 4 Mich. 565; 2 S.E. 97; 12 S.W. 820; 40 So. 67; 52 S.W. 318; 52 S.W. 1003.
Johnson & Burr, for appellees.
1. The court's finding on the issue of fact as to whether or not Mrs. Ward signed and executed the first mortgage is supported by the evidence, and will not be disturbed. 115 S.W. 1141; 77 Ark. 305; 68 Ark. 134; Id. 314. The evidence to impeach the officer's certificate of acknowledgment must be clear and convincing beyond a reasonable doubt. 1 Am. & Eng. Enc. of L., 2d Ed. 560; Id. 561, note 5 and cases cited; 18 Am. Rep. 634. The testimony of both husband and wife is not sufficient to overturn the officer's certificate. 52 S.W. 909; 115 N.W. 548; 128 Ill.App. 195; 52 S.E. 23; 36 O. St. 644; 45 O. St. 1, 4; 116 N.W. 43. "A person's name signed by another person with his authority is his signature." 25 Am. & Eng. Enc. of L., 2d Ed. 1066; 126 Ga. 305; 88 A.D. 65. The acknowledgment, if defective, was cured by act of March 20, 1903, Kirby's Dig., §§ 783, 786; 75 Ark. 139; 77 Ark. 57; 118 S.W. 255; 112 S.W. 892. Mrs. Ward is bound, notwithstanding her name did not appear in the body of the mortgage. 112 S.W. 892; 3 Wash. Real Property, c. 4, § 1, sub. 31; 28 N.W. 116; 86 Ky. 653; 26 Miss. 275; 2 N.H. 525; 58 S.E. 828.
2. The omission of the range number by the clerk in recording the mortgage does not operate to prejudice the mortgagee. 28 Ark. 244; 54 Ark. 273. But the record is sufficiently clear to enable a surveyor to identify the land with reasonable certainty. 11 Cur. Law 1057; 40 Ark. 237.
3. The instrument sued on is an equitable mortgage. 3 Pomeroy, Eq., § 1237; 1 Jones on Mort. 168; 31 Cal. 321; 51 Ark. 433; 60 Ark. 595; 11 Am. & Eng. Enc. of L., 2d Ed. 123; 78 S.W. 340.
4. The language employed in the mortgage clearly shows the wife's intention to join in the conveyance of the homestead, and is sufficient for that purpose. 118 S.W. 255.
OPINION
This is a suit in equity instituted by appellees, Stark Brothers against G. O. Ward and his wife, N. G. Ward, to obtain foreclosure of two certain instruments of writing, alleged to be mortgages on the same tract of land, which constituted the homestead of G. O. Ward. J. A. Gill, a subsequent purchaser of the land from Ward, was made a defendant in the suit, and he also appeals from the decree of foreclosure.
The first instrument executed is as follows:
This instrument was duly filed for record and recorded, and notes were subsequently executed to cover the debt therein described. The second instrument is regular in form as a mortgage, and was duly executed and acknowledged by G. O. Ward. His wife N. G. Ward joined her husband in the granting clause of the deed, and also expressly relinquished dower and homestead. The certificate of her acknowledgment is as follows:
It is contended that the wife's acknowledgment to this mortgage was an insufficient compliance with the provisions of the statutes (Kirby's Digest, § 3901) concerning conveyances of a homestead. This objection may, however, be disposed of by reference to the recent case of Gantt v. Hildreth, 90 Ark. 113, 118 S.W. 255, which is precisely in point and decisive of this case.
Questions arising on the other branch of this case, involving the first instrument, are, however, more serious. Was it sufficient to constitute an equitable mortgage on the land described? The only language purporting to create a lien is as follows: "It is also understood and agreed by the parties hereto concerned that this agreement is and shall be a lien upon said farm upon which the trees are planted until the said party of the second part shall receive of the said party of the first part the compensation herein above specified." This language in the instrument unmistakably manifested the intention of the parties that a lien should be thereby created on the land, and equity will give effect to this intention by enforcing the lien. Mitchell v. Wade, 39 Ark. 377; Bell v. Pelt, 51 Ark. 433, 11 S.W. 684; Williams v. Cunningham, 52 Ark. 439, 12 S.W. 1072; Martin v. Schichtl, 60 Ark. 595, 31 S.W. 458; Flagg v. Mann, 2 Sumn. 486, 9 F. Cas. 202; Pinch v. Anthony, 8 Allen 536; Stark v. Anderson (Mo. App.) 104 Mo.App. 128, 78 S.W. 340; Martin v. Nixon, 92 Mo. 26.
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