70 Ark. 490 | Ark. | 1902
(after stating the facts.) This is a suit in equity to cancel a note and mortgage, and to set aside and annul a sale made under the power contained in the mortgage. The statute requires that, before land can be sold under power contained in a mortgage, it must be appraised by three disinterested householders of the county appointed by a justice of the peace of the county in which the real estate is situated. Sand. &. H. Dig., § 5112; Acts 1895, p. 4. But the justice of the peace who appointed the appraisers, as well as the appraisers who appraised the property, lived in a different county from that in which the land a]Dpraised was situated, and there was, for this reason, no valid appraisement, and the sale was void.
The contention on the part of the plaintiff that this was a mortgage of the homestead, and void for noncompliance with the statute regulating conveyances of homesteads, we do not think is supported by the record. The evidence does not show that this property was occupied as a homestead at the time the mortgage was executed, and, even if it did show that fact, we think the acknowledgment was sufficient; and, further, that, even if the acknowledgment had been defective as contended, the defect would have been cured by the subsequent curative act of 1893.
Nor do we think there is any ground for the contention that the mortgage is barred by the statute of limitations. The plaintiff in her complaint asked, if the court found that there was ■anything due from her to Raines or Kelley on account of the note •or mortgage, that “an account thereof be stated, and the plaintiff have leave to bring the same into court and pay the same, which she now and here offers to do, and for other relief.”
In his answer to this complaint Kelley asked that the plaintiff’s complaint be dismissed, and that he have a decree for the possession of said land, and for further relief. Under the prayer of this complaint and answer, we think, if the court had found that the sale under the mortgage was void, but that the mortgage and note were valid, it would have been its duty to have ascertained the amount due on the mortgage, and to have given a decree therefor in favor of defendant, with leave for plaintiff to pay the same, as she offered to do in her complaint. We therefore think that the running of the statute of limitations was stopped by the action of plaintiff herself, and her contention on that point must be overruled.
This brings us to the questions upon which the case was decided by the circuit court. The circuit judge found that there was no consideration for the note. On that point the evidence was conflicting. There was evidence tending to show that the note and mortgage were executed to Eaines at his request to enable him to borrow money or to secure a collateral for a loan which he intended to procure, and that they were not executed to secure a debt, as Eaines contended. While there is doubt about the matter, we feel that the finding of the chancellor on that point has evidence sufficient to sustain it.
But Kelley alleges that he purchased the note and. mortgage before maturity for a valuable consideration and without notice of any defense on the part of plaintiff. After a careful consideration of the evidence, we are of the opinion that this contention of Kelley is supported by the evidence, and that the finding of the chancellor on that point is clearly against the weight of evidence.
For this reason the judgment is reversed, and the cause remanded, with directions for a judgment in favor of Kelley for amount of note and foreclosure of the mortgage.
