215 S.W.2d 1021 | Ark. | 1948
On June 10, 1946, appellant, Cecil Elms, purchased a 1945 model motor truck from appellee, E. A. Hall, making a cash payment of $1,250 on the purchase price of $2,000. On the same date Cecil Elms and his sister, appellant Hazel Elms, executed their joint promissory note to appellee due one year from date for $750, the balance of the purchase price of the truck. They also executed a mortgage on a tract of Cleburne county land, which they owned jointly, to secure payment of the $750 note.
At the time of the execution of the note and mortgage, Cecil Elms was married to, but separated from, the appellant, Claudine Elms, and she did not join in the execution of the mortgage. On May 11, 1947, Cecil Elms obtained a divorce from his wife, Claudine, on the ground of desertion and was awarded custody of their two minor children. This decree recites that Claudine Elms executed a waiver and entry of appearance in the divorce suit and that there were no property rights to adjust between the parties.
On August 25, 1947, appellee instituted this suit to foreclose the mortgage alleging that no payments had *603 been made on the note; and that although appellant, Claudine Elms, did not join in the execution of the mortgage, she had subsequently abandoned and forfeited all dower and homestead rights she might have had in the lands at the time the mortgage was executed.
Appellants filed an answer and cross complaint in which they set up the contentions now urged for reversal of the decree against Cecil Elms and Hazel Elms on the note and ordered foreclosure of the mortgage.
The first contention for reversal of the decree is that the land mortgaged to appellee by Cecil Elms and his sister, Hazel Elms, was the homestead of Cecil Elms and his wife, Claudine, and since the latter did not join in the execution of the mortgage, it was rendered void under 7181 of Pope's Digest. This section provides that no mortgage affecting the homestead of any married man shall be of any validity except for taxes, laborers' and mechanics' liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges same. Appellants cite several cases where the statute has been invoked, but none of the cases involve a situation where the marital status of homestead claimants has been dissolved by divorce.
The land mortgaged to appellee by Cecil Elms and his sister, Hazel, was conveyed to them jointly in 1945. Arkansas follows the rule supported by the weight of authority that a tenant in common or joint tenant may acquire a homestead in the undivided premises. Robson v. Hough,
The evidence discloses that Cecil Elms and his family maintained a home on the mortgaged land for a short time following the 1945 purchase. Claudine Elms left her husband and children sometime prior to June 10, 1946 — the exact date is not shown — and moved to a county in eastern Arkansas. When his wife left him, Cecil Elms moved with his children to his father's adjoining farm, where he has since resided and has rented *604 the mortgaged land to tenants. In April, 1946, Cecil and Hazel Elms sold the timber on said lands and she signed and acknowledged the timber deed as the wife of her brother. Appellee testified that at the time of the execution of the mortgage, Cecil Elms represented to him that he and his wife were divorced, but this was denied by Elms.
The determination of appellants' first contention is controlled by the case of Johnson v. Commonwealth Bldg. Loan Association,
In Biddle v. Biddle,
The preponderance of the evidence supports the chancellor's finding that Cecil Elms misrepresented his marital status when he executed the mortgage to appellee and he is thereby estopped to claim the invalidity of the mortgage. This misrepresentation would not operate as an estoppel against his wife, Claudine, even though she had deserted her family. Mason v. Dierks Lumber Coal Co.,
It is next insisted that Hazel Elms had no real interest in the land, but was merely holding title as trustee for the minor children of her brother, Cecil Elms. There is nothing in the conveyance of the lands to Cecil and Hazel Elms to indicate the existence of a trust. The deed on its face purports to convey fee title to the lands and there was no suggestion of a trust relationship when he executed the mortgage to appellee. The bare statement of Hazel Elms that she only took title as trustee is insufficient to establish the creation of a trust as against appellee who had a right to rely on the record title and had no notice of the alleged trust relationship. We have repeatedly held that parol evidence to establish the existence of a constructive trust in lands must be full, clear and convincing. See Tillar v. Henry,
It is finally contended that the note and mortgage were void for the reason that the purchase price of the truck was in excess of the ceiling price fixed by O. P. A. *606
regulations. An allegation to this effect was made in the answer and cross complaint of appellants which was specifically denied in appellee's reply. Although it appears from the Price Control Extension Act of 1946, Public Law 548, that price controls on nonagricultural commodities were not lifted until December 30, 1946, appellants offered no proof to establish the ceiling price of the motor truck on the date of purchase from appellee. Appellants rely on the cases of Scott Furniture Co. v. Maurer,
It is suggested that we should take judicial notice of the O. P. A. ceiling price of a 1945 model truck on June 10, 1946. As a general rule, state courts take judicial notice of the rules and regulations of well known federal administrative bodies. 31 C.J.S., Evidence, 39. However, it has been held that a state court will not take judicial notice of rulings and orders of federal agencies when relied upon to defeat an otherwise valid instrument. Evans v. Sheriden,
The decree is affirmed. *607