Kenney v. Streeter , 88 Ark. 406 ( 1908 )

Wood, J.

(after stating the facts.) 1. The most material allegation of the complaint, as it affects appellant, is that he purchased with full knowledge of the deed of trust, and “that the assumption of the payment of said indebtedness by him was the real consideration for. the deed from Daniel S. and Abbie D. Kenney, and that the said S. F. Kenney in writing assumed the payment of said notes.” "The appellant’s answer does not deny this specific and well-pleaded allegation. Therefore, under the statute, and many and some recent decisions of this court, it must be taken as true and confessed. It was not necessary for appellee to prove it. Sec. 6137, Kirby’s Digest; Haggart v. Ranney, 73 Ark. 344; Simon v. Calfee, 80 Ark. 65; St. Louis, I. M. & S. Ry. Co. v. State, 85 Ark. 561.

The agreed statement of facts shows that there is no provision to pay the mortgage debt mentioned in the deed from Daniel S. to S. B. Kenney. But that does not disprove the allegation of the complaint. It only shows that the deed did not mention any assumption of the mortgage debt. But that is far from disproving that appellant assumed the payment of said notes in writing, as the complaint alleged. We must take it from the undenied allegation that there was some other writing than the deed by which appellant assumed to pay the notes in suit as a consideration for the purchase by him of the land from his father. But, in addition to this, we are of the opinion that the various letters of D. S. and S.. B. Kenney to appellee contain sufficient evidence of an express promise on the part of appellant to pay the debt of his father to appellee as a part of consideration for the deed. We have not set forth these letters in the statement of facts, but we have carefully read and considered them. A letter of D. S. Kenney’s to appellee of July 18th, 1899, shows that he had let his two sons, appellant being one of them, “have the farm, they to stand in his place and meet the obligations of the mortgage.” The letters of appellant, subsequent to this one, and the other letters of D. S. Kenney, show that appellant had assumed the debt of his father to appellee, for he sends in these at various times small payments, amounting in the aggregate to $132. In the first letter he says, inter alia, “I will do the very best I can, and as soon as I can, for you in the way of settlement,” referring, as the whole letter shows, to the land in suit. Promises of similar purport are contained in sundry other letters in which small remittances are made, with excuses and apologies for not sending more. The whole correspondence, fairly construed, contains evidence of an express promise to pay the debt to appellee as the consideration for the deed. The very small sum of one dollar mentioned in the deed as the consideration therefor shows that appellant was to pay D. S. Kenney and wife only a nominal sum.' But he took possession of the land in controversy, and, as his letters show, occupied and used the income therefrom for his own purposes. This deed and the possession of the eighty-acres of land was a sufficient consideration for his promise to pay the debt of his father to appellee. The court did not err, •therefore, in rendering personal judgment against appellant.

2. We are also of the opinion that the proof shows, and it follows from what we have said, that appellant was not a “third party,” in contemplation of section 5399, Kirby’s Digest. That section has no application to cases like this, and the action was not barred. The decree was correct.