78 Ark. 275 | Ark. | 1906
(after stating the facts.) There is sufficient evidence to sustain the findings of the chancellor that the money was borrowed by the defendant for her own use, and the findings, not being against the clear preponderance of the evidence, will not be disturbed. Du Hadaway v. Driver, 75 Ark. 9; Sulek v. McWilliams, 72 Ark. 67; Greer v. Fontaine, 71 Ark. 605.
This court, in Sidway v. Nichols, 62 Ark. 154, said: “Our conclusion is that a married woman has, under the law, the right to purchase personal property, or borrow money for her separate use, and that the property purchased or money borrowed becomes her separate property. Her contract to pay for the same is a contract in reference to her separate property, and creates a personal obligation, valid ifi law and in equity, and this without regard to whether she owned any additional property or not.” It is unimportant what use she made of the money after she received it, as the lender was not bound to see that she actually used it for her own purposes and benefit. All that is necessary is that the money shall have passed to her as her own property to do with it as she pleased. The evidence shows that this was done in this case.
It is contended that the suit was prematurely brought because it was agreed, by indorsement upon the mortgage that “this deed is not to be foreclosed until the seventh or last payment is due.” It was not agreed, however, that payment should not be enforced until the last note became due. Only the date of foreclosure was postponed. The plaintiff could have brought suit on either of the notes any time after the respective dates of maturity, and the running of the statute of limitations would have been arrested by commencement of such suit. The only purpose of this suit was to have a lien declared on the land, and we are not called upon to determine whether the statute of limitations had begun against a foreclosure of the mortgage as to these notes, or whether this suit arrested the statute, as this question was not raised by the pleadings, and the court did not decree a foreclosure. For the same reason appellant was not prejudiced by the decree merely declaring the debt to be a lien on the lands. The court might, under the allegations of the complaint and general prayer for relief, have gone further and rendered a personal decree against the defendant for the amount of the debt, but it did not do that. The appellant can not complain that the relief granted to appellee stopped short of that which the pleadings and proof justified. If appellee is content to accept that relief only, no prejudicial wrong is done to appellant.
The suit is somewhat novel on account of the peculiarity of the contract in relation to postponement of foreclosure of the mortgage, but we find nothing in the decree of which appellant may justly complain, and the same is affirmed.