140 Ark. 262 | Ark. | 1919
This suit was instituted in the Western District of the Carroll Chancery Court by appellee against appellants, to foreclose a mortgage on certain lots in Eureka Springs, executed on the 18th day of October, 1909, by appellant, Persis L. Christian, to A. L. Clark, and’ to cancel, as fraudulent and void, a deed executed upon the same lots by Persis L. Christian to the Christian Women’s Board of Missions, on the 20th day of November, 1917.
The amended bill, in substance; alleged that the appellee was the owner of the note, evidencing the indebtedness secured by the mortgage, by virtue of assignment; that said note, according to its terms, was due on or before one year after date, and, while barred on' its face by the statute of limitations, it was not in fact barred, because Persis L. Christian, for a valuable consideration, had agreed by oral contract to pay said indebtedness, and not to plead the statute of limitation; that the deed executed by Persis L. Christian on November 20, 1917, to the Christian Women’s Board of Missions was procured by undue influence and overpersuasion at a time when the mind of Persis L. Christian was not sufficiently strong for her- to know the effect and consequence of her acts; and that at the time Persis L. Christian executed said deed she was not of sound and disposing mind.
During the pendency of the suit, Persis L. Christian died, and the cause was revived in the name of F. -M. Gear, special administrator. The special administrator and the Christian Women’s Board of Missions filed answer, denying each and every material allegation in the bill.
The cause was heard upon the pleadings, the note and mortgage, the depositions of witnesses and exhibits thereto, and certain documentary evidence adduced by agreement of the attorneys, from which the court found the issues in favor of appellee, declared a lien upon the lots in question in favor of appellee for $2,415.75, which included debt, interest and money advanced for taxes and insurance upon the property, decreed a foreclosure and order of sale, and canceled the deed executed by Persis L. Christian to the Christian Women’s Board of Missions on the 20th day of November, 1917, in so far as it affected the rights of appellee in the property under her mortgage. Prom that decree an appeal has been duly prosecuted to this court.
But appellants insist .that, even though Persis L. Christian is precluded from pleading the statute of limitations against the debt and lien, by reason of an original undertaking, still the mortgage lien became extinct by the failure of appellee to make a note thereof on the margin of the record where the mortgage was recorded. In support of this contention, section 5399 of Kirby’s Digest is cited. That section is as follows: “In suits to foreclose or enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given. Provided, when any payment is made on any sncli existing indebtedness, before tbe same is barred by the statute of limitation, sucli payment shall not operate to revive said debt or to extend the operations of the statute of limitation with reference thereto, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, endorse a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded, which endorsement shall be attested and dated by the clerk.”,
Much evidence was taken upon the issue of whether Persis L. Christian was possessed of a sound and disposing mind at the time she executed the deed to the Christian Women’s Board of Missions. The evidence is wholly insufficient to establish the procurement of the deed through fraud. Under the view expressed above, it is unnecessary to consider either issue in the trial of the case de novo.
The result reached by the chancellor is correct, and the decree is affirmed.