66 Ark. 367 | Ark. | 1899
(after stating the facts.)' We deem it unnecessary to set out in detail, and to discuss at length, the evidence upon which the court below based its findings. We are of the opinion that the findings of fact embraced in the court’s decree are supported by the evidence. We are safe in saying that they are not clearly against the weight of evidence. Therefore the court’s findings of fact will be sustained. Did the court err in its rulings upon any of the questions of law?
1. The court found that the mortgage from Farnsworth and wife was invalid. Sand. & H. Dig. § 3713, provides: “No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity, except for taxes, laborer’s and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument, and acknowledges the same.” The contract between Donaldson, Farnsworth and Hoover & Bro., by which Donaldson and wife were to execute a warranty deed to Farnsworth, and Farnsworth was to execute his notes to Hoover & Bro. for the aggregate amount of the Donaldson and Lombard mortgages held by Hoover & Bro., as set forth in the statement of facts, however circuitous the method, was tantamount to an advancement by Hoover & Bro. to Farnsworth of the purchase money to the amount of these mortgages. For, according to the agreement, it was only by paying off these mortgages that Farnsworth was to get his warranty deed- from Donaldson to the land. The execution of the mortgage from Farnsworth to W. G. Hoover & Bro. to secure the amount of these mortgages, simultaneously with the execution of the deed from Donaldson to Farnsworth, was, in reality, nothing more nor less, in effect, than a mortgage to secure the purchase money. It was, in legal-effect, the same as if Hoover & Bro. had taken the deed to themselves from Donaldson, and then conveyed the land to Farnsworth, and taken a mortgage back to secure the amount of the Donaldson and Lombard mortgages, which represented the purchase price Farnsworth was to pay for the land. “A homestead exemption,” says Mr. Jones, “cannot be set up against a mortgage to secure money borrowed with which to pay the purchase price, when such mortgage is executed simultaneously with the deed of purchase.” 1 Jones, Mort. § 468,
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The mortgage in controversy comes within the exception, “purchase money,” named in the statute. The court therefore erred in declaring it invalid because Mrs. Farnsworth had not executed and acknowledged it in the 'manner required by the statute in other cases. This error, however, was not prejudicial, for the court' granted appellees the same relief that it should have granted by enforcing the Farnsworth mortgage.
This court will not reverse except for prejudicial errors, and, although there was no cross-appeal by appellee on the ruling of the court holding the mortgage invalid, the appeal from its ruling enforcing the Lombard and Donaldson mortgages raises the question here as to what decree the court should have rendered; and, in that view, it is proper to pass on the validity of the Farnsworth mortgage.
2. Was the suit to foreclose for the entire mortgage debt premature? Each of the notes for the principal contained this condition: “On failure to pay interest thirty days after due, the holder may collect principal and interest at once.” The mortgage contained the following:' “This .sale on condition that, whereas I am justly indebted unto the said W. G. Hoover & Bro. in the sum of twelve hundred eighty-nine and 80-100 dollars, evidenced by one promissory note of three hundred eighty-nine and 30-100 dollars, due December 31, 1896, and drawing interest at the rate of ten per cent, per annum from December 31, 1894, as shown by coupons attached; also three promissory notes of three hundred dollars each, due December 31, 1897, and December 31, 1898, and December 31, 1899, respectively, and drawing interest at the rate of ten per cent, per annum from December 31, 1894, as shown by coupons attached and all of even date herewith. * * * Now, if I shall pay said moneys at the time and in the manner aforesaid, then the above conveyance shall be null and void,” etc. The mortgage sufficiently identifies" the notes, evidencing the debt which it was given to secure. The mortgage being only a security or incident to the debt, it was not necessary for it also to contain a condition making the whole debt due upon failure to pay any installment of interest, in order to justify foreclosure for the entire debt. It was sufficient that the notes contained such a provision. The notes and mortgage were executed at same time, and in relation to the same subject, as parts of one transaction constituting one contract. 1 Jones, Mort. §§ 71, 76, 349, 354; Fletcher v. Daugherty, 13 Neb. 224.
In the cases cited to support the opposite view, neither the note nor mortgage contained such a provision as that in the notes sued on herein. In the absence of such a clause in either the note or mortgage, there would, to be sure, be no authority to declare the whole debt due. ■
We do not find any waiver of the right to declare the principal due. An indulgence for a period of nine months, especially while the parties were conferring about the matter, certainly would not be an unreasonable length of time to wait before declaring an election to foreclose for the entire amount of the mortgage debt.
3. Was the sale illegal? It is insisted that it should have been made at the court house door, and upon twenty days’ notice, according to the requirements of sections 3095 and 3096 of Sand. & H. Dig. Those sections are as follows: “Sec. 3095. The time and place of sale of real property upon execution, or by virtue of a judgment or order of sale, must be advertised for at least twenty days next before the day of sale, by posting printed advertisements at the court house door and five other public places in the county in which the sale is to be made, one of which is to be upon the premises to be sold,” etc. ‘.‘Sec. 3096. The sale of real estate shall be made at the court house door, uuless, at the request of the defendant who owns the land, the officer shall appoint the sale upon the premises.”
These sections refer to sales made by the officer of real estate upon execution issued by the clerk on a judgment or order of sale, and where the time, place and notice to be given are not fixed specifically by the judgment. The latter section shows clearly that this statute is not intended to apply to sales made by the court through its own special agent or commissioner for that purpose, as in case of mortgage foreclosures; for, if the court’s order in a decree of foreclosure directed the sale made at a certain place, the officer would have no right to change it at the request or behest of the defendant, as is contemplated by section 3096, supra. Sand. & H. Dig. §§ 5856-5860, concerning mortgage foreclosures and sales thereunder, nowhere prescribe the time, place and notice to be given in such sales. These are left entirely in the discretion of the court, which must be presumed to arrange for the most advantageous sale possible. See Sessions v. Peay, 23 Ark. 39.
The report of the commissioner who made the sale shows that it was made at the place designated by the decree of the court. The chancellor found that the only irregularity in the sale was that the notice of sale had been posted on the premises to be sold nineteen days before the day of sale. The decree required that the notice should be posted twenty days. The court further found “that the failure on the part of the commissioner to post the notices twenty days before the sale was not intentional;” that the defendants had actual knowledge that such notice was posted upon the premises, and made no objection to the sale until the filing of the exceptions; that no evidence has been submitted to show that any injury resulted to defendants by reason of such irregularities.” If posting on the premises the full twenty days according to the order of the court was an imperious requirement of the law, no proof or finding that no injury resulted would cure the irregularity. But such is not the case. The sale being made under the court’s supervision, it was within its sound discretion to confirm or reject according to the justice of the ease. And, as the irregularity of posting under all the circumstances might well be considered de minimis, the court did fight to confirm the sale.
Finding no prejudicial errors, the decree of Benton chancery court is affirmed, and the cause is remanded, with directions for such other and further proceedings by such court as may be necessary to enforce them.