Evans v. Williams , 124 Ark. 271 ( 1916 )

Kirby, J.

(after stating the facts). (1) We are unable to say, after a careful consideration -of the whole record, that the chancellor’s finding against the contention that the decree was paid and should have been satisfied, is clearly against the preponderance of the testimony. It is undoubtedly true that, enough money to satisfy it was taken by Eugene Williams to Memphis and paid to the owner of the decree, but about $2;000 of this sum was furnished by the bank and charged against Mrs. Evans as a depositor and the other $4,000 was realized from a sale of a piece of land, her separate property, upon which the bank held a second mortgage. Said Williams, the bank cashier, stated positively that Mrs. Evans was unable to pay the- decree, desired an extension of time that the lands might be saved to the estate or something realized from it therefor, and that he was unable in any other way to procure such extension. He took the transfer.of the judgment to the bank and thereafter sold and transferred it, crediting her account as a depositor in the bank with the entire sum realized from its sale, the amount that was paid in the purchase of it. She made no complaint at the time about this transaction and, - although it is true she said she had no notice of it, it is undisputed that the whole amount of- the money realized from the assignment of the judgment by the bank, to which it was transferred in the first instance, was checked out and used by her, which transaction corroborates the cashier’s statement that it was but a purchase of the judgment in the first instance and a matter of bookkeeping in the accounts to secure the desired extension of time.

(2) The contention that the debt upon which the Bobinson decree was entered was barred by the statute of limitation, insofar as it affected the rights of the Blanton minors and should be set aside and vacated as to them, is without merit. The proceeding was an ordinary suit for foreclosure of a mortgage against the widow and heirs of the deceased mortgagor, Blanton, and hot against the executrix of his estate, and there was no plea of the statute therein and the decree being regular on its face and showing the court had jurisdiction, is not subject to collateral attack by the minors. 22 Cyc. 804; Trapnall v. State Bank, 18 Ark. 53.

It is not such a decree as the infant heirs are allowed to show cause against by the statute (Section 6248 and Div. 8,- Section 4431, Kirby’s Digest), being one for the foreclosure 'and gale of mortgaged premises for the payment of the debt secured, and not to divest them of an interest in land or require of them a conveyance of lands in which they had a personal interest. Blanton v. Rose, 70 Ark. 415; Paragould Trust Co. v. Perrin, 103 Ark. 67. The decree in No. 4078 is accordingly affirmed.

(3) It is urged' in No. 4079 that the chancellor’s finding that the $300 note, dated February 19, 1909, had not been paid, is not supported by the testimony, and this contention must be sustained. There is a decided conflict in the testimony upon this point, the appellant testifying that she sent a check from Hot Springs for $300, payable to the order of the bank, which was later charged to her account, in payment of the note. This check appeared to be personally endorsed on the back by her, and the cashier, who had no recollection of the transaction, thought from the endorsement that the money had been paid directly to her and it also appeared that the amount of the note had been included in a larger note of later date, given in renewal of all her smaller notes due and unpaid to the time of its execution. Her positive statement that the note was paid with the check payable to the bank for the amount thereof, which was later charged to her account, and denial of the collection of the check or receipt of any money thereon, with the inability of the master to find where she could have been credited with the whole of said sum, if the principal part thereof had been paid to her in cash, as the cashier thought was the case, furnishes a clear preponderance of the testimony against the finding that the note was not paid.

The fact that the amount thereof was claimed to be included in a note for a much larger amount executed by her in renewal of all smaller notes, due and unpaid at the bank, is not entitled to much weight under the circumstances of this case, against the testimony showing the payment of the note, since she relied implicitly upon the bank cashier, who was her confidential agent and adviser, and executed such papers as he requested her to sign. The amount of the decree must, accordingly, be reduced by said sum of $300.

(4) The chancellor’s finding relative to the commissions due Eugene Williams as agent for Mrs. Evans, for making collections and attending to her affairs, and foreclosing a lien therefor under the mortgage to the bank, is likewise erroneous. According to the master’s report said Williams was not entitled to more than the sum of $953.11 on all business transacted, and the undisputed testimony, and his own admissions show that he has received and been paid more than $1,000.00 commissions for his services, and the finding that $453.11 was due him on that account was clearly against the great preponderance of the testimony, and since the mortgage, taken to secure her indebtedness to the bank, did not coyer any indebtedness due to her said agent, the chancellor erred in so finding and decreeing a foreclosure therefor.

The decree is erroneous and will he reversed and the cause remanded with directions to reduce the amount of the recovery against appellant, Mrs. Evans, in the sum of the said items of $300, and $453.11 — $753.11 in all, arid to enter a decree for the balance due after making such reduction, and for foreclosure of the lien and sale of the land.

It is so ordered.