| Ark. | Nov 22, 1909
(after stating the facts). Section 5415 of Kirby’s Digest is as follows: “Before any mortgagee, trustee or other person shall proceed to foreclose any mortgage, deed of trust, or to replevy, under such mortgage, deed of trust, or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due.
The statute is mandatory. Compliance with its terms is a prerequisite to the maintenance of a suit to replevin mortgaged property. This has already been practically decided by this court in Atkinson v. Burt, 65 Ark. 316" date_filed="1898-05-14" court="Ark." case_name="Atkinson v. Burt">65 Ark. 316, where we held that failure to furnish a verified statement -might have been pleaded to a suit to foreclose or to replevy the property. Where a failure to comply with the statute may be pleaded as a defense, necessarily the statute is mandatory.
The purpose of the statute, as declared in Perry County Bank v. Rankin, 73 Ark. 589" date_filed="1905-01-14" court="Ark." case_name="Perry County Bank v. Rankin">73 Ark. 589, is “to give the mortgagor an opportunity before suit to -pay the debt” and to settle any controversy over any items that might be in dispute without “going to law.” The Legislature did not have in view the matter merely of saving the mortgagor the costs that might be incident to a lawsuit. Its purpose was'not oidy to prevent that but also any annoyance and inconvenience he might suffer by having his property taken from him by process of law before giving him an opportunity to adjust any differences with the mortgagee and to settle his account, if possible, without a lawsuit. The burden was therefore placed on the mortgagee, as a condition precedent to the maintenance of a suit to foreclose or for possession, that he comply with the statute. But the mortgagee. does not forfeit his debt by failing to comply with the statute. Atkinson v. Burt, supra. He still has the right to his debt and to any other remedies provided by law for the enforcement of its payment. He may still have his remedy of foreclosure by complying with the statute. It is a reasonable provision and subserves a useful purpose. It is not a compliance with the law to furnish statements as the items are bought from time to time, nor to furnish a sworn statement of the account without the items that compose it.
Compliance with the statute is not waived where the mortgagor sets up the noncompliance in defense, which was done in this case by his motion to dismiss.
The ruling of the court was correct. Affirm.