| Ark. | Jan 7, 1929
This is the second appeal in this case. On the first appeal the decree was reversed, and the cause remanded because the trial court rendered a judgment against the administrator of the estate of F. O. Stobaugh, deceased, in part for unmatured indebtedness, and decreed a foreclosure and sale of the property described in the mortgage to pay same. Reference is made to the case of Hill v. Brittain,
On April 17, 1928, appellant filed a motion to set aside the decree on the ground that the cause had not been properly revived in that it had not been revived against the heirs of F. O. Stobaugh, deceased. On the hearing of the motion the court refused to set aside the judgment against appellant as administrator of the estate, but set aside the decree of foreclosure and order of sale of the lands to satisfy the indebtedness.
Appellant contends that the trial court should have set the judgment against him as representative of the estate aside as well as the decree of foreclosure and order of sale of the lands, because appellee failed to revive the cause against the heirs of F. O. Stobaugh upon the suggestion of his death; and appellee contends that the decree of foreclosure and order of sale of the lands should have been permitted to stand.
The ruling of the court upon the motion was correct. The purpose of the suit against F. O. Stobaugh was two-fold; first, to obtain a judgment against him for the indebtedness evidenced by his notes, and, second, to foreclose and sell the mortgage security to pay the judgment, if obtained. Upon Stobaugh's death, and during the pendency of the suit, the action for the indebtedness survived against his administrator, and the action to subject the security to the payment of the indebtedness survived against his heirs. Section 98 of Crawford Moses' Digest provides:
"All actions pending against any person at the time of his death which by law survive against executor or administrator shall be considered demands legally exhibited *787 against such estate from the time such action shall be revived, and shall be classed accordingly."
And 1058 of Crawford Moses' Digest provides in part: "If the order is made by the consent of the parties, the auction shall forthwith stand revived. * * *"
Under these statutes the cause for the recovery of the indebtedness was properly revived against the administrator and amounted to a presentation of the claim to him within the time required by law. As stated above, one purpose of this suit instituted against F. O. Stobaugh was to recover a judgment for the indebtedness evidenced by the notes he had executed to A. J. Brittain, the appellee, and we know of no good reason why a mortgagee might not take a personal judgment against the estate of a deceased mortgagor, and forfeit his claim under the mortgage to a mortgage lien on the property described in the mortgage by failing to revive the suit upon the death of the mortgagor against the heirs within one year from the date of his death. Sections 1062, 1063, 1065 and 1066, Crawford Moses' Digest; Blake v. Thompson,
This court is committed to the doctrine that the heirs of a decedent mortgagor are necessary parties in a foreclosure proceeding to subject the lands described therein to the payment of the mortgage indebtedness. This rule is based upon the fact that the title to the real estate described in a mortgage descends to the heirs of a deceased mortgagor as well as the right to redeem same from the mortgage lien. They are necessary parties because of their ownership of the equity of redemption in the lands. Buckner v. Sessions,
The decree therefore of the trial court will be in all things affirmed except that part thereof granting permission to appellee to make the heirs of Stobaugh parties at the time the foreclosure decree was set aside. In that respect the final decree of the court upon the motion is modified.