Goodman v. Pareira , 70 Ark. 49 ( 1901 )

Hughes, J.,

(after stating the facts.) The notes which the trust deed was given to secure were executed by Swanigan, the mortgagor, by making his mark, which was not witnessed as required by law, wherefore the appellants contend that the evidence of their execution is not sufficient. But the deed of trust contained a full description of the notes, and it was duly acknowledged and filed for record. This was sufficient proof of the execution of the notes. Was the deed of trust barred?

When it was executed the law was that, to bar a proceeding to foreclose a mortgage, there must hare been an adverse holding for such a period as would bar an action of ejectment, which was seven years. The fact that the statute bar had attached to the debt secured by the mortgage would not affect a proceeding to foreclose. Birnie v. Main, 29 Ark. 591. The act of March 31, 1887, provides that when a debt secured by a mortgage is barred, an action to foreclose the mortgage shall be also barred. But this act was only prospective in its operation, and did not apply to mortgages existing at the time of its passage. Duke v. State, 56 Ark. 485. “No mortgage to which it applies would be barred in a shorter time after its passage than the period of limitation prescribed for the debt secured, unless barred sooner by adverse possession,” Id. The second section of the act of March 25, 1889, provides “that in all cases in existing mortgages where the debt or liability would be, barred by the terms of this act, or where the debt or liability exists would be barred in less than one year from the date of this act, the party in whose favor said debt or liability exists shall be allowed one year from the date of this act to bring an action to enforce the same.” This suit was instituted September 15, 1889, within less than one year from the elate of the passage of the act, which was March 25, 1889. The mortgage existed when the act of 1889 was passed, on the 31st of March, 1887. It was not barred then, and would not have been until five years thereafter, and in 1889 the act above quoted allowed one year after its passage within which to bring the action to foreclose. Therefore, as the suit was brought within the year after the passage of the act of 1889, it was in time, and was not barred.

The answer to the claim of adverse possession for seven years is that the appellant, Mrs. Goodman, made payments on the debts secured by the mortgage in 1882, 1883, 1884 and 1885. Though these payments by Mrs. Goodman might not have the effect to prevent the running of the statute, yet they were an acknowledgment, in effect, of holding under the mortgage, and that there was no intention to claim adverse possession. They continued to within four years of the bringing of the suit to foreclose.

To constitute adverse holding against a mortgagee by the mortgagor, there must be open and notorious denial of the mortgagee’s title. Birnie v. Main, 29 Ark. 591.

This holds not only as to the mortgagor, but as to privies and grantees with notice. Whittington v. Flint, 43 Ark. 504; Ringo v. Woodruff, 43 Ark. 469. The suit was not barred.

The decree is affirmed, with directions to proceed to foreclose the mortgage.