64 Ark. 492 | Ark. | 1897
(after stating the facts.) The question in this case concerns the right of the appellee, Bloomah J. Bloom, to redeem land of one James S. Floyd, sold under an execution upon a judgment against him in favor of the appellant, the Bluff City Lumber Company. The judgment was recovered against Floyd in a proceeding begun by said company to enforce a lien for materials furnished by it to Floyd for the erection of a house upon the land sought to be redeemed.
Appellee bases her right to redeem upon a mortgage executed by Floyd to her after the lien for materials furnished had attached in favor of the appellant company. Now, as her mortgage was executed and recorded before the commencement of the action of the lumber company against Floyd, if such mortgage had been valid, she would have been a necessary party to said action; and, as she was not made a party, her rights would have remained unaffected by such action and the judgment therein. But, at the time her mortgage was executed, the land mortgaged was the homestead of Floyd, and his wife did not join in the granting clause of the deed, as required by statute in mortgages or other conveyances of a homestead. Sand. & H. Dig., § 3713. By reason of the failure to comply with the statute in this respect, the mortgage upon the homestead was, to quote the language of this court in a similar case, “a nullity, and left the title as though it had never been made.” Pipkin v. Williams, 57 Ark. 242.
The interpretation given to the statute by the above and other decisions has become fixed, and cannot now be changed. The mortgage of appellee being a nullity, she had, at the time the company commenced its action to enforce its lien for price of materials furnished, no interest in the land, and it was unnecessary to make her a party to said action.
This action of the lumber company, as has been stated, progressed to trial and judgment; and, on the 14th day of February, tbe land was sold and purchased by the company in satisfaction of its judgment against Floyd. After this purchase by the company, the legislature, on the 13th of April, 1893, passed an act curing conveyances of homesteads defective by reason of the failure to comply with provisions of the statute above referred to; but this curative act could not affect vested rights. At the time this act was passed, the appellant company, by virtue of its judgment against Floyd and its purchase at the sale of the land under the execution issued thereon, had become vested with the right to receive a conveyance of the title to said land if not redeemed within one year. The sheriff offered and sold to said company that interest in the land, and it thus acquired a property right, which could not be affected by a subsequent act of the legislature. Barnitz v. Beverly, 163 U. S. 118; Bank of Harrison v. Gibson, 60 Ark. 269; Greenwood v. Butler, 52 Kas. 424; Cooley, Const. Limitations (6 Ed.), 465.
The only effect this curative act of 1893 had upon the rights of the parties to this action was to render the mortgage to appellee valid as to the interest in the land still held by Floyd at the time the act was passed,—and, this was the right to redeem from the sale at which the company purchased within one year from the date thereof. But appellee failed to exercise that right within the time allowed. The year for redemption expired, the sheriff executed his deed conveying the land to the company, and it thus became the absolute owner, of the land.
The appellee is said to be a poor woman, not able even to pay for the printing of the brief of her counsel in this ease, and this fact would, if we were allowed any discretion in the matter, incline us to uphold the decree granting her the right to redeem; but, under the law as determined by previous decisions of this court, the property in controversy belongs now to the appellant company, and appellee has no right to redeem against its consent.
The judgment in her favor must therefore be reversed, and her action to redeem dismissed for want of equity.
