42 Ark. 66 | Ark. | 1883
The object of this suit was to enjoin the collection of city taxes on a quarter section of land adjacent to the city, but wholly unimproved, according to the uncontroverted averments of the bill. The plaintiffs were two married women, non-residents of the State. In the latter part of the year 1870, or beginning of 1871, they had sold and conveyed the land to Alexander McDonald, and had taken a mortgage back for the purchase money. This mortgage was in good form, properly executed and acknowledged, and duly recorded. Afterwards, upon an extension of time for the payment of the purchase money, McDonald executed a new mortgage, but the acknowledgment of this was defective.
In 1872, McDonald and one Wheeler, who had in the meantime acquired an interest in the property from McDonald, conveyed it in trust to John W. Eaust as trustee, to lay it out in lots and blocks. And in 1873, Faust by bill of assurance, laid the land off as McDonald and Wheeler’s Addition to the City of Little Rock, and donated the streets to the public.
The purchase money not having been paid, the plaintiffs filed their bill and obtained a decree of foreclosure, and at the sale bought the land in.
Upon the final hearing, the Chancellor held that the land was within the corporate limits of the City of Little Rock, and dismissed the bill for injunction.
No doubt causing the land to be laid off as an addition, and subdividing: it into lots and blocks, was a dedication of the intervening streets and alleys, so far as McDonald, or any title derived from him, is concerned. The statute declares the legal effect of such acts, when done in relation to territory contiguous to a city of the first class, to be annexation. Gantt’s Digest, sec. 3317; Act of March 9, 1875, sec. 94; City of Little Rock v. Parish, 36 Ark., 166.
But could a dedication by McDonald affect the plaintiffs’ mortgage?
A dedication must be by the owner of land or of an _ ^ estate therein. If a mere intruder upon this land had attempted to lay it off as an addition, the true owner would not be bound. And the dedication of the owner of a particular estate will not bind the remainder-man, when the estate comes into his possession. 2 Smith’s Lead. Cas., [90], notes to the case of Dovaston v. Payne.
And a dedication by an agent without authority would not bind his principal.
Now a mortgagor is, for most purposes, regarded in equity as the beneficial owner. But he can do nothing to diminish the security. And the mortgagee is not affected by his acts in passing any right of his in the premises to third persons. Thus, if he conveys the land, his grantee takes only an equity of redemption. If he confesses judgment, the lien which his creditor obtains is subject to the mortgage. If he gives a lease or a license, the mortgagee need not inspect it after he gets possession upon foreclosure.
It is plain McDonald could not have dedicated the whole tract, as for a park or pleasure ground, to the prejudice of plaintiffs. Neither could he dedicate, let us say, one-fourth of it for streets and alleys, so as to bind them. The plaintiffs had a right to the whole premises as security for their debt. They could not be compelled to take three-fourths of the laird as payment. A foreclosure sale under a mortgage to secure the purchase money avoids a previous dedication by the mortgagor, and a purchaser at such sale buys free from it. Hague v. Inhabitants of West Hoboken, 23 N. J. Eq., 354.
The defect in the certificate of acknowledgment is a matter with which the city has not the remotest concern, and of which it can take no advantage.' It was not a purchaser for value. Mastin v. Halley, 61 Mo., 196; Bishop v. Schneider, 46 Ib., 472.
The payment of city taxes for 1875 and 1876, and of State and county taxes for the four following years, upon the land, under the description of “ N. W. ¼ of Sec. 9, T. 1, N. R. 12 W., being all of McDonald & Wheeler’s Addition to the City of Little Rock,” are considered as acts of ratification and acquiescence of too slight and indecisive a character to affect the result.
The decree is reversed and an injunction will be awarded here.
