Wooster v. Cavender

54 Ark. 153 | Ark. | 1891

Hemingway, J.

„f y The appellees released the lien of a prior mortgage and took a second mortgage to secure their debt. They were ignorant that an intermediate mortgage, covering the same property, had been made to the appellant. They would not have released their prior mortgage if they had known of the one intermediate. The evidence discloses that they acted in good faith without culpable negligence. The-appellant made some advances under his mortgage, before the second mortgage of the appellees was executed, and while their first mortgage appeared upon the records as a paramount lien ; as to those advances he understood at the time that they had the paramount lien. He made further advances after the first mortgage appeared satisfied of record, but with full notice that it was satisfied only by the execution of the second ; and he could not have been misled by such record satisfaction, nor have believed that the appellees intended to postpone their lien to his. As the appellees acted in good faith and without culpable neglect under a mistake as to a material fact, it is within the ordinary powers of a court of equity to grant them relief, provided it can be done without working hardship or injustice to innocent parties. 1 Story, Eq., sec. no; 2 Pom. Eq., sec. 849.

In cases in all respects like the present, courts of equity have extended their aid and restored the lien of the satisfied mortgage; such action, we think, is sustained by correct principle as well as by the authority of adjudged cases. Bruse v. Nelson, 35 Ia., 157 ; Hutchinson v. Swartsweller, 31 N. J. Eq, 205 ; Cobb v. Dyer, 69 Me., 494; Campbell v. Trotter, 100 Ill., 281; Jones on Mortg., sec. 971 ; Corey v. Alderman, 46 Mich., 540; Young v. Shauer, 35 N. W. Rep., 629; Robinson v. Sampson, 23 Me., 388 ; Geib v. Reynolds, 35 Minn., 331.

The judgment is affirmed.