85 F. 268 | 8th Cir. | 1898
This is a suit in equity brought by appellants to foreclose a mortgage and enforce the payment of notes secured thereby. The mortgage is alleged to have been executed by appellees, Henry C. Hite and Laura Hite, husband and wife, and the notes are alleged to have been executed by said Henry C. Hite. The mortgage on its face bears date of March 21, 1890, and purports to have been acluiowledged on the 22d day of March, 1890. The answer of defendants interposed the following defenses: First. That defendant Henry O. Hite, at the time of the execution of the mortgage, was too drunk to comprehend what lie was doing; that lie was so irrational as not to understand the business he was transacting, and did not know that he was executing the mortgage; and that these facts were known to the complainants, who procured the execution of the mortgage. Second. That the real estate covered by the mortgage constituted the homestead of defendants; and that the defendant wife executed the same under duress of her husband, against her free will and consent; and that these facts were known to complainants at the time the mortgage was executed. Third. That a designated portion of the land mentioned in the mortgage was so imperfectly described as to he incapable of identification. Fourth. Tiiat the instruments in question were executed on Sunday. Other matters were pleaded in the answer whirl) are not necessary to he considered. To this no replication was filed, under the impression, as we assume, that the Code of Arkansas, which does not require any replication to put in issue new matter pleaded in the answer, was apjdicable to this proceeding. This, however, was a misconception of an equity proceeding. State statutes regulating matters of practice in courts of law or equity have no effect upon the jurisdiction or practice of the federal courts in equity cases. 1 Fost. Fed. Prac. § 6; Blease v. Garlington, 92 U. S. 8. But, as the parties went to trial and proceeded upon the assumption that the matters pleaded in the answer were at issue, the failure to file the replication may he treated as if this requirement had been waived. The circuit court, in passing upon the facts, found that by a vast preponderance of the evidence it was established — First, that the mortgage and notes sued on were signed and delivered on Sunday, and that these facts were known at the time of the execution of the mortgage to the trustee named therein, who was also the then acting agent of complainants; second, that Laura Hite, the wife, executed and acknowledged the mortgage under duress, and that this fact was known to the said trastee and agent. The court made no finding on the question of fact as to whether the defendant Henry O. Hite was intoxicated.
On examination of all the evidence bearing upon the issue, we are entirely satisfied that the conclusion reached by the circuit; court, that the mortgage and notes in question were executed on Sunday, and that complainant’s agent (trustee) had notice thereof, was cor
“Every person who shall on the Sabbath or Sunday be found laboring, or shall compel liis apprentice or servant to labor, or to perform other service than the customary household duties of daily necessity, comfort or charity, on conviction thereof shall be fined $1.00 for each separate offense.”
The supreme court of the state has uniformly held that this statute makes void all contracts, including notes and mortgages, executed on Sunday. Tucker v. West, 29 Ark. 386; Merritt v. Robinson, 35 Ark. 483; Quarles v. State, 55 Ark. 10, 17 S. W. 269. The decisions of the highest court of the state respecting a contract made and to be executed there, in respect of the effect thereon of the Sunday laws, are binding on the federal courts. Bucher v. Cheshire Railroad Co., 125 U. S. 555, 8 Sup. Ct. 974. Counsel for appellants, however, contend that as the certificate of acknowledgment to said mortgage was dated as of Saturday, the day previous to the Sunday in question, it is unimpeachable. It is quite immaterial what date the officer taking the acknowledgment gave to his certificate. The mortgage did not become effective until it was executed and delivered; nor is the acknowledgment evidence of delivery. Freeman v. Peay, 23 Ark. 439; 1 Jones, Mortg. § 501. The acknowledging officer could not give effect to the void instrument by writing out his acknowledgment as of the day preceding or of the day succeeding the execution and delivery of the instrument. The deed, if not executed on Sunday, was good as between the parties from the time of its execution and delivery without acknowledgment.
The result from the foregoing facts found by the court, as matter of law, is that the contract sued upon is void; and it is therefore unnecessary to determine the other matters of defense interposed by the answer. It is insisted, however, in the ¡brief of appellants’ counsel, that this defense should not be sustained, because it is claimed that the evidence shows that the mortgage was based upon a most meritorious consideration, and that defendant Henry O. Hite afterwards recognized and ratified the existence and validity of the mortgage and the debts thereby secured. It does appear from the evidence in the case that the notes and the mortgage in question were given in renewal of an antecedent mortgage, executed by defendants, on the land in question to the complainants, to secure a corresponding debt. The complainants, it may be conceded, might have proceeded, notwithstanding the renewal of the notes and mortgage, to foreclose the antecedent mortgage, as the taking of a new note and mortgage was not payment and satisfaction of the preexisting note and mortgage, in the absence of direct proof that the later notes and mortgage were given in extinguishment of the preexisting debt. Geib v. Reynolds, 35 Minn. 335, 28 N. W. 923; Sloan v.. Rice, 41 Iowa, 465; Oliphant v. Eckerley, 36 Ark. 69; Gregory v. Thomas, 20 Wend. 17. This would be especially so where the renewal mortgage is malum prohibitum. But the answer to this is that the suit is not based upon the pre-existing mortgage,
Assuming, as we have, that the case should be treated as if a general replication had been interposed to the answer, the status of the pleadings is that the new matter pleaded in the answer stood denied. and the making and execution of the mortgage in question was reaffirmed; and therefore the only issues involved were and are, was the mortgage executed and delivered as alleged in the bill? and. second, was it a fact that the same was executed and delivered on Sunday? The contention, therefore, that notwithstanding the contract in question was entered into on Sunday, in violation of the statute law of the state, yet, by reason of defendant’s subsequent acknowledgment and ratification of the contract, a cause of aciion on the mortgage exists, is dehors ihe issues presented by ihe pleadings. Bank v. Armstrong, 62 Mo. 59; Currier v. Lowe, 32 Mo. 203; Wade v. Hardy, 75 Mo. 399. The decree of the circuit court is affirmed.
