133 Ark. 456 | Ark. | 1918
Lead Opinion
(after stating the facts). (1) It is first insisted by the plaintiff that the appeal of L. J. and S. E. Newald and the Dorough-Newald Company be dismissed because it was not taken within the time allowed by law. Appeals must be taken from judgments or decree® within six months, from the date of their rendition. Stephens v. Williams, 122 Ark. 255. It appears from the record that the decree of foreclosure and sale of the mortgaged premises was rendered on January 20, 1916. The appeal was not granted until November 21, 1917. This was more than 'six months from the date the decree was entered of record. Counsel for the defendants speak of this decree throughout their brief as being an interlocutory decree but we are of the opinion that it was a final one. In the case of Davie v. Davie, 52 Ark. 224, the court held (quoting from the syllabus):
In the' last mentioned case the court said: “It may be said in general that if the court make a decree fixing the rights and liabilities of the parties, and thereupon refers the case to a master for a ministerial purpose only, and no further proceedings in a cohrt are contemplated, the decree is final; but if it refers the case to him as a subordinate court and for a judicial purpose, as to state an account between the parties, upon which a further decree.is to be entered, the decree is not final.”
In Cooper v. Ryan, 73 Ark. 37, the court held a decree foreclosing a mortgage ,and appointing a commissioner to sell the mortgaged property is a final judgment from which an appeal must be taken.
In Jones on Mortgages (7 ed.), volume 3, paragraph 1600, the author said: “A judgment which settles all the rights of the parties ahd directs a sale of the premises, .and that the defendant pay any deficiency which may arise after such «ale, is .a final decree from which an appeal may be taken; though in a limited sense it is interlocutory, inasmuch as further proceedings are necessary to carry it into effect. It leaves nothing further to be adjudicated. ’ ’
And so, too, with regard to the issues raised by the other persons who had purchased tracts of land from the mortgagors after the execution of the mortgage. The decree of foreclosure found the amount of the debt secured by the mortgage and ascertained the property to be sold under it. A commissioner w.as appointed to take charge of the property and sell it under the directions provided for in the decree. Hence it will ¡be .seen that if no other action -had been taken after the rendition of the decree of January 20, 1916, the rights of the plaintiff, the mortgagee, and of the defendants, who were the mortgagors, would have been settled. Therefore the decree was final.
The rights of the plaintiff and defendants to the foreclosure suit were settled by the decree of January 20, 1916. The reservation of the ditch taxes claimed to have been paid by the plaintiff did not, under the authorities above cited, make the decree an interlocutory one. Neither did the fact that they were subsequently allowed and added to the amount of the decree of January 20, 1916, and the further fact that a sale of the lands was again ordered, have that effect. The decree of January 20, 1916, remained in force until it was set aside by consent of the parties, or by a. valid order of the court. The decree was not even attempted to be set aside; but on the contrary its validity was expressly recognized in the decree of March 17,1917, and referred to.
It was contended by the plaintiff that the provision for a release contained in the original mortgage was inserted in it without its knowledge and consent after the original draft of the mortgage had been approved by it. On the other hand, it was the contention of the mortgagors that this provision was placed in the mortgage by the • express agreement of the parties. Testimony had already (been taken by the parties to establish their respective contentions. The stipulation of October 8, 19.15, by its express terms settled this controversy between the parties. It had the effect, not only to cancel the notice which the plaintiffs had inserted on.the margin of the record on the 30th of April, 1914, but it constituted a new agreement under which the lands might be sold and released from the mortgage. It appears from the record that the stipulation of October 8, 1915, was not complied with in any respect. No attempt was made by Taylor, Terry or Morgan to comply with its provisions. The tender made by each of them was in .accordance with the release provision in the mortgage; and, inasmuch as that provision had been superseded by the later agreement, it may be said that it was no tender at all, and for the reason that they failed to comply with the provision in regard to the release contained in the- stipulation of October 8,1915, they were not entitled to have any of the lands purchased by them released from the mortgage.
The conclusion we have reached and the views we have expressed render it unnecessary for us to decide the. issues raised in regard to the purchases made by the other persons; for the decision of the court in regard to their rights and interests concerned only themselves and the plaintiffs, none of whom have prosecuted an appeal from the decree.
The 'decree of the chancellor in regard to their rights ■and interests can not affect the defendants, L. J. and S. E. Newald and Dorough-Newald Company, because they did not appeal from the foreclosure decree and they can not be prejudiced by the court setting aside the contracts which they made with these parties. The rights of Taylor, Terry and Morgan can not be affected because, as we have already seen, they failed to make the tender under the stipulation of October 8, 1915, and therefore have no right to have the mortgage released as to the lands purchased by them.
It follows that the decree will be affirmed.
Rehearing
(on rehearing). Counsel for appellants, Terry .and Taylor, asked for a rehearing on the ground that they were entitled to redeem in accordance with the terms named in the mortgage. They base their contention on section 7 of the 'Stipulation filed October 8, 1915.
It will be remembered thafi section 7 provides, in effect, that all land sold thereafter and not mentioned in defendants “exhibit 8” are to be released upon the payment of the pro rata amount per acre as by the terms of the original mortgage.
We will first take up the claim of Terry. The whole of the stipulation of October 8, 1915, is to be read and considered together. Terry did not testify in the case. According to the testimony of another witness, which is not disputed, Terry wanted a release from the mortgage of about 1,407 acres of land under the terms of the original mortgage upon the payment of $10.70 per acre, making a total of $15,054.90. He demanded that there be deducted from this amount the sum' of $7,500 which was conditionally agreed to be allowed the mortgagor as damages. Section 9 provides that if the mortgagor failed to make the payments provided for in section 3, a decree of foreclosure in vacation might be entered of record and the counter-claim of the mortgagor he dismissed. The undisputed evidence shows that the payments were not made as required by the stipulation. The tender was made by Terry on January 5, 1916. Therefore, it will be seen that the- time for making the payments had expired and the mortgagor was not entitled to be allowed the $7,500 as damages. When this is deducted from the amount tendered by Terry, it is plain that he did not even tender the amount provided for in the mortgage.
In the early part of January, 1916, Newald met his attorneys, Terry and Taylor, and consulted about the foreclosure proceedings. Newald had not complied with the provisions of the stipulation of October 8, 1915, Avith regard to the payments to' be made. He knew that under the stipulation the mortgageehad a right tohave the mortgage foreclosed. He informed his attorneys that he was not able to make the payments as required by the stipulation. He then executed the deeds to a part of the lands embraced in the mortgage to Terry and Taylor. The principal part of the consideration was the attorney’s fees he owed them. The deeds to Terry and Taylor were executed at a time when the mortgagor had failed to make the payments as provided in the stipulation and ,at a time when the mortgagee was entitled to a foreclosure of the mortgage. Terry and Taylor, under the circumstances, had no greater rights than the mortgagor and were not entitled to have the lands released at all.
Section 7 provides that all lands sold hereafter and not mentioned in defendant’s exhibit 8 ,are to be released upon the payment of the pro rata amount per acre as per the terms of the original mortgage. Exhibit 8 is not in the record and for aught that appears to the contrary the lands purchased by Terry and Taylor may be mentioned in exhibit 8. Every presumption is in favor of the correctness of the decision of the court below, and in order to warrant a reversal, error must affirmatively appear from the record. This has been established by an unbroken line of decisions in this court. Hence it was incumbent upon Terry and Taylor to have seen that exhibit 8 was in the transcript, and not having done so, the presumption is in favor of the correctness of the decree. Norman v. Poole, 70 Ark. 127; Hardie v. Bissell, 80 Ark. 74, and Tatum v. Crownover, 94 Ark. 58.
Applying this rule, it will be presumed that the lands conveyed to Taylor and Terry were a part of those referred to in paragraph 6 as held in our original opinion.
Therefore, the motion for a rehearing will be denied.
