152 Ark. 18 | Ark. | 1922
(after stating the facts). It is first insisted by counsel for appellants that the foreclosure proceedings commenced by W. D. Polk against appellants on September 8,1913, are void and of no effect because the land was misdescribed in his complaint and in the notice and report of sale. Hence they contend that appellees are mortgagees in possession within the rule anounced in Lesser v. Reeves, 142 Ark. 320, and that the proof shows that they have collected sufficient rents and profits to pay off the mortgage.
In making this contention counsel have not taken into consideration the effect of the subsequent foreclosure decree made on the 8th day of October, 1915. Conceding W. D. Polk to be a mortgagee in possession, still he had a right to foreclose his mortgage. Again, conceding that the first foreclosure proceeding was invalid because the land, was not correctly described, still this did not prevent Polk from amending his complaint so as to correctly describe the land embraced in the mortgage: It will be remembered that the mortgage was made an exhibit to the first complaint, and that the mortgage as exhibited contained a correct description of the land. On the 7th'day of September, 1915, W. D. Polk filed his petition against appellants in the same chancery court and set forth the mistake which had been made in the former proceedings in the description of the land. He stated the correct description of the land, and the relief prayed for was the foreclosure of the particular mortgage which was exhibited with his original complaint, and which correctly described the land.
In an action to foreclose a mortgage in equity the exhibits control the averments of the complaint. The action of the court in permitting this pleading to be filed was equivalent to giving Polk permission to amend his original complaint and ask for a foreclosure of the mortgage which was exhibited with it. Blasingame v. Loudermilk, 132 Ark. 542. Under this decision the pleading of W. D. Polk filed on the 7th day of September, 1915, was equivalent to granting him permission to amend his foreclosure proceedings.
Another foreclosure decree was entered of record on the 8th day of October, 1915. This decree recites that all the defendants had been served with personal summons more than twenty days before the beginning of that term of the chancery court. The defendants in that suit are the plaintiffs in the present suit and the appellants in this court. The decree in that case having recited that the parties had been duly served with summons, allegations to the contrary cannot avail appellants in the present suit, which is a collateral attack on that decree. Taylor v. King 135 Ark. 43. In the last ease cited it was also held that the decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.
When Polk obtained permission to file his amended complaint in the mortgage foreclosure proceedings on the 7th day of September, 1915, and obtained service of summons on appellants, who were the defendants in that action, it was their duty to have presented all the defenses they might have to the suit. They knew as well then as they do now that Polk had been in possession of the land and collecting the rents and profits therefrom. They then should have interposed as a defense to that action that the mortgage had been satisfied by the collection of the rents and profits by Polk from the mortgaged premises, if such was the fact. In short, all the matters asserted by appellants in this suit might have been claimed by them and adjudicated in the foreclosure suit. Having failed to interpose any defense to that suit, they are barred by the decree in that case from seeking to adjudicate the question in this case.
Again counsel for appellants claim that the first sale made under' the foreclosure decree of October 8, 1915, last referred to, is invalid because the mortgaged premises are again misdescribed in the notice of sale and the report of sale.
The record shows that Albert Powers became'the purchaser at that sale, and subsequently on the 8th day of October, 1918, moved the court to set aside the sale as being invalid on account of the misdescription of the property sold and to again have the property sold by the commissioner under the foreclosure decree. His motion was granted by the chancery court on the same day that it was filed, and the land was again advertised and sold by the commissioner under the foreclosure decree. Albert Powers again became the purchaser, and the report of sale by the commissioner was confirmed by the court, and a deed was made by the commissioner to Albert Powers subsequent to the order of the court, and this deed was approved in open court. •
It is the contention of counsel for appellants that this last sale is void because no notice was given to them. We do not agree with them in this contention. As we have already seen, they were duly served with summons before the foreclosure decree was made. The first sale under the foreclosure decree of October 8, 1915, was invalid because the land was not correctly described in the notice and report of sale. The land was correctly described, however, in the foreclosure decree. When Albert Powers purchased at the sale, he beoapie a party to the proceedings, although the sale itself was invalid because the land was incorrectly described in the notice of sale. Miller v. Henry, 105 Ark. 261, and Purcell v. Gann, 113 Ark. 332. Having become a party to the proceedings, Albert Powers had a right to ask for a resale of the land, and no notice thereof to the appellants was necessary. After appellants were served with summons as recited in the decree of October 8, 1915, they were required to take notice of all the subsequent proceedings in the case which might affect their rights. It was their duty to follow the case to its end, and, not having done so, they are not now in an attitude to complain in a collateral suit that no notice was given to them that the second order of sale would be asked. Trumbull v. Harris, 114 Ark. 493.
It is true there is evidence in the record tending to show that the appellant, Minnie Shaw, was an infant at the time the foreclosure proceedings were rendered against her and the other appellants. Her infancy, however, is not shown in the proceedings. Besides, the statute giving an infant twelve months after reaching full age to show cause why the judgment should not be vacated, Crawford & Moses’ Dig., § 6277, has no application to a foreclosure decree under a mortgage upon the lands by the infant’s ancestor. Estes v. Lucky, 133 Ark. 97.
Neither is it a proceeding under § 6290 of Crawford & Moses ’ Digest to vacate a decree for erroneous proceedings against an infant where the condition of the infant does not appear in the record.
Therefore, the decree will be affirmed.
