54 Ark. 340 | Ark. | 1891
This suit was brought to foreclose a mortgage of lands executed to the plaintiffs, Draughon and Allen Brothers, by the defendant, John B. Nix, on the 4th day of September, 1880. The complaint sets out in full the mortgage deed ; and the latter contains a recital to the effect that Nix had, on the day the mortgage bears date and for the consideration of $350, “cash in hand paid,” conveyed to the plaintiffs by deed, “with full covenants of warranty and seisin,” certain town lots, describing them ; that, on the same day and by like deed, Nix and W. H. Cayce had, for the sum of $600, conveyed to the plaintiffs certain other lots, describing them; and that the title to all said lots was the subject of controversy in a suit in equity then pending in the circuit court of the United States for' the eastern district of Arkansas, in which Nix was the plaintiff and one Thomas Allen was the defendant. After reciting these facts, the condition of the mortgage provided that it should be void if said suit should “ finally be determined ” in favor of Nix, so that it should be adjudged that he was the owner in fee simple of the lots sold to the plaintiffs-; but that it should otherwise “ remain in full force and effect ” for the purpose of securing to the plaintiffs “ the full repayment of the sums paid by them ” for the lots, “ whenever, by the judgment and decision of said court,” it should be “ determined and decided ” that Nix should not recover the lots, but that they were the property “ of said Thomas Allen or any other person claiming adversely ” to Nix.
The complaint alleges that said cause of Nix against Thomas Allen was taken by appeal to the Supreme Court of the United States, where, on the 3d day of November, 1884, it was finally determined by the judgment of that court that the lots so conveyed to the plaintiffs were not the property of Nix, but were the property of some other person claiming adversely to him. The complaint further alleges that no part of either of said sums has been paid, and prays judgment foreclosing the mortgage. Nix filed an answer in which he states that the “ mortgage was given as conditional indemnity and guaranty against the happening of a future contingency, and not to secure * * * an ascertained sum of money or debt;” that each of the covenants in the deeds conveying the lots was broken on the 13th day of April, 1881, and that no suit had been brought for such breaches; that, by failing to bring such suit, the plaintiffs have been guilty of gross negligence, whereby the right of action on the mortgage has been lost. The defendant further states that the plaintiffs took possession of the town lots after the conveyances made to them, and that they have ever since had uninterrupted possession of the same, “ enjoying the rents and profits.” He also pleads the statute of limitations, and, by way of demurrer reserved in the answer, objects to the sufficiency of the complaint. The defendant also filed a cross-complaint, setting up in substance the same matters contained in his answer, and praying that the plaintiffs be enjoined from prosecuting their action, and that the mortgage be declared void. A demurrer was sustained to the answer and cross-complaint, and, Nix declining to plead further, a judgment was entered condemning the land to sale for the satisfaction of the plaintiffs’ demand. No personal judgment against the defendant was rendered.
The demurrer to the defendant’s answer and cross-complaint was properly sustained, and the judgment below is affirmed.