Felker v. Rice
161 S.W. 162
Ark.
1913
Check Treatment
Hart, J.,

(after stating the facts). It is insisted that the court erred in admitting the deed record as evidence of the deed from James Pozza to John E. Felker, because the original deed was in existence and was the best evidence, and that the testimony of the clerk set out in the statement of facts should not have been received in evidence for the same reason. In support of his position, counsel cites the сase of Pendergrass v. Allan, 101 Ark. 365; but we do not think that case sustains his position. There objection was made to the introduction of the evidence. Here no objection was made to the introduction of the еvidence so far as the record discloses. In regard to a precisely similar contention to that now made by counsel for defendant, in the case of Allan v. Ozark Land Company, 55 Ark. 549, the court said:

“It is contended that the tеstimony of Cobbs as to the contents of the records in his office was not competent, because the records or certified copies thereof were the best evidence of their contеnts. This is true. But it does not appear in the record in this case that there was any objection to its admission as evidence. Appellant had the right to waive the production of the records or certifiеd copies of the same, and accept proof of their contents, and did so by his silence. Failing to object, he thereby lulled the appellee into repose and deprived it of the oрportunity ‍​​‌‌‌‌‌‌​​​‌‌‌‌​​‌​‌​​‌​‌​‌‌​‌​​​​​​​​‌‌​​​‌‌​​​‍of offering better evidence. Had the testimony of Cobbs been incompetent for any purpose or on any condition, the circuit court should have given it no consideration, and in weighing the evidence should have excluded it on its own motion. In such cases the failure of a party to object does not add to the probative force of the incompetent testimony; but in case of secondary evidence, if he waives the conditions on which its admissibility depends, he thereby gives to it full force as evidence. This is the rule in actions of law. Frauenthal v. Bridgeman, 50 Ark. 348. The same rule prevails in actions in equity.”

It is also urged that the decree should be reversed because the plaintiff failed to make the note an exhibit to her complaint; but no objection was made to her not doing so, and, under our familiar rules of practice, her failure to do so will bе taken as waived by the defendant. The mortgage sought to be foreclosed was made an exhibit to the complaint and was read in evidence and considered by the chancellor with the complаint. Neff v. Elder, 84 Ark. 277. The testimony shows that the deed from Pozza to John E. Felker was duly acknowledged and filed for record, and, after it was recorded, was sent by the clerk to Felker at Bogers, where he resided. The deеd was afterward found in his possession. The deed recites that the consideration was $200 cash and the assumption of a $400 mortgage. Thus, it will be seen that the deed contains a stipulation that the property wаs subject to a mortgage which the grantee agreed to pay. In such cases, a duty is imposed on him by the acceptance of the deed, and the law implies a promise to perform it. See Patton v. Atkins, 42 Ark. 197. Besides, Pozza testified that Felker agreed to assume and pay off the mortgage as a part' of the consideration for the deed. Parol ‍​​‌‌‌‌‌‌​​​‌‌‌‌​​‌​‌​​‌​‌​‌‌​‌​​​​​​​​‌‌​​​‌‌​​​‍evidence to establish this fact was held to be competent in the case of J. H. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426. So, too, in the case of Strohauer v. Volts, 42 Mich. 444, the Supreme Court of that State, speaking through Mr. Justice Cooley, held:

“A deed containing a covenant of warranty ‘against all lawful claims whatsоever subject to a certain mortgage given by the parties of the first part for one thousand dollars,’ merely leaves the title subject to be defeated by a failure to pay the mortgage debt, but does not bind the grantee to pay it. And the exception is not such a written contract as will exclude evidence to show that in addition to the consideration expressed, the grantee had also agreеd to pay off the mortgage. The exception and the agreement are distinct.”

The learned justice, in the opinion, said that such rule of evidence was not in any respect opposed to the well-known rule that parol proof can not be introduced to add to and vary written instruments. If plaintiff was unable to satisfy her debt against Pozza by the foreclosure ‍​​‌‌‌‌‌‌​​​‌‌‌‌​​‌​‌​​‌​‌​‌‌​‌​​​​​​​​‌‌​​​‌‌​​​‍of the mortgage, Pozza would be personally liable for the deficiency, and Felker, having assumed the mortgage debt and agreed to pay it, stood in the position of surety for the debt. The doctrine is stated in Mount v. Van Ness, 33 N. J. Eq. 262, as follows:

“The mere assumption tо pay the mortgage on the land, if made by the grantee to the grantor, is at most an indemnity merely; and though, if the grantor be personally liable for the payment of the mortgage, the mortgagee may, in equity, pursue the grantee on his assumption, that, however, is because, and only because, the mortgagee is, in equity, entitled to the benefit of all collateral securities which his debtor has taken for the mortgage dеbt. * * * And if the grantor is not personally liable for the mortgage debt, the mortgagee can not look to the grantee, personally, at all; because the assumption is but an indemnity, and, the grantor not being liable, the indemnity is-practically a mere nullity.”

It is contended that the original decree should be reversed because it was prematurely entered. The defendant, Felker, filed his answer on the 9th day of September, 1912, аnd on the 12th day of October, 19.12, at the same term of the court, the chancery court records show that Felker was given ten days from that date within which to file an amended answer, and that the testimony of James Pоzza would be taken in court on the 27th day of November, 1912. The defendant, Felker, should have taken notice that the case would come up on that day for further proceedings, and might be reached for final hearing on the call of the calendar. He did not file Ms amended answer, and did not appear in court on the 27th day of November, and is not now in position to claim that the judgment was prematurely enterеd. It is true that on a subsequent day of the same term of court he filed a motion to set aside the decree, and gave Ms reasons therefor; but he did not press this motion to a hearing, and it was not heard and determined until a subsequent term of the court. After the expiration of a term at which a decree is rendered, the court rendering the decree has no power to set it aside or modify it, except upon application under the statute and for some cause therein specified, or by bill of review under the chancery practice. Turner v. Vaughan, 33 Ark. 455; Terry v. Logue, 97 Ark. 314. But if the motion to set aside the decree be treated as an application under the statute, and for the causes therein, specified, still the decree of the chancellor must be affirmed on the whole record. We have already adverted to the evidence introduced by the plaintiff in our discussion of the original decree, and it is not necessary to repeat it. It is true that John E. Felker testified that Pozza did not convey to Mm any part of the land embraced in ‍​​‌‌‌‌‌‌​​​‌‌‌‌​​‌​‌​​‌​‌​‌‌​‌​​​​​​​​‌‌​​​‌‌​​​‍the mortgage, and that he did not assume or agree to pay the mortgage debt. He stated that he had no acquaintance with Pozza, and had never had any dealings with Mm; but' it must be remembered that Pozza testified that he did execute the deed, and that he assumed and agreed to pay the mortgage debt of Pozza to plaintiff. The deed was acknowledged and filed for record, and this was prima facie evidence of its delivery. Estes v. German National Bank, 62 Ark. 7. And the clerk testified that after he had recorded the deed, he mailed it to the defendant at Rogers, Ark., where he resided. Besides that, the deed was afterward found among Felker’s papers. It will be noted that Felker testified that no such company as the Tontitown Townsite Company, composed of himself and others, existed; and the record shows that Felker exеcuted a deed, as a member of the Tontitown Townsite Company, which was recited to be a partnership composed of himself and others. It is true, that Pozza was not able to identify Felker at the time hе testified, but he testified that the trade was made whereby he agreed to convey the land to Felker in the office of the bank of which Felker was cashier at Rogers, and said that there were several gentlemen present but, not having any previous acquaintance with them, he did not recollect which one was John E. Felker. Pozza had had no previous acquaintance with Felker, and this may account for the fact that he could not identify him at the hearing. Under all the circumstances of the case, and, considering the multitude of business transactions had by Felker as cashier of the bank, it is probable that he did not remember the transaction with Pozza. In any event, the chancellor, on the whole record, found in favor of the plaintiffs, and refused to set aside the decree, and it can not be said that his finding was against the clеar preponderance of the evidence.

Finally, it is objected that the court rendered judgment against W. R. Felker and A. L. Williams, who became sureties on the injunction bond to stay the execution issued aftеr the original decree was entered of record, and to enjoin the enforcement of the decree. The injunction stayed the proceedings on the original decree and enjoined its enforcement, so that immediately on the dissolution of the injunction the chancellor was empowered to render judgment against the principal and sureties on the injunction bond according to its terms. Kirby’s Digest, § 3998; Greer v. Stewart, 48 Ark. 21; Stanley v. Bonham, 52 Ark. 354. Moreover, these same parties, A. L. Williams and W. K. Felker, have signed the supersedeas bond in the appeal of J. E. Felker from the judgment rendered against him on November 27, 1912. The judgment and decree against J. E. Felker having been affirmed,'the plaintiff is entitled to judgment ‍​​‌‌‌‌‌‌​​​‌‌‌‌​​‌​‌​​‌​‌​‌‌​‌​​​​​​​​‌‌​​​‌‌​​​‍against him, and also his sureties on the supersedeas bond. Therefore, no prejudice could in any event result^ to W. R. Felker and A. L. Williams, and it is well settled that we only reverse judgments and decrees of the lower court for errors which are prejudicial to the rights of appellants.

It follows that the decree must be affirmed.