Johnson v. Union Bank & Trust Co.

Kirby, J. The undisputed testimony shows that the loan was procured and- the money used for the benefit of the property of Susie Crabtree, which was mortgaged to secure the payment of it. The president of 'the bank stated that they knew the amount of insurance collected, and that it was necessary to have this money for completing the improvement in addition to the insurance and the amount of money advanced by A. A. Crabtree. Crabtree stated that all of said sum of money was borrowed from the bank for the purpose of making the improvement on Mrs. Crabtree’s property and so used, in addition to the insurance collected and the $600 he had advanced, for which no claim was made; that the money could not be borrowed upon the security of the Searcy lots only, the property of his wife, but, in addition, he had to include the 80 acres of his land in Jackson County. The testimony also shows that all payments made were made by Crabtree out of his own funds, and that the amount of the indebtedness was never reduced below the amount of the original loan. .The mortgage provided that it should be security for the payment of any extensions or renewals of the whole dr any part of said indebtedness in lieu thereof, and also for the payment of any other liability or liabilities of the grantor already or thereafter contracted to the said Union Bank & Trust Company, until the satisfaction of the said deed of trust upon the margin of the record thereof. This provision is inclusive, and only needs interpretation according to its plain meaning and intent, and must be interpreted to mean what it says. Certainly there is no inequity in requiring the sale of the property belonging to Mrs. A. A. Crabtree for the payment of her debt- .secured by it, which the undisputed testimony in fact showed never to have been reduced below the amount of the original note. Howell v. Walker, 111 Ark. 362, 164 S. W. 746; Word v. Cole, 122 Ark. 457, 183 S. W. 757; Hollam v. Amer. Bank of Commerce & Trust Co., 168 Ark. 939, 272 S. W. 654. There was some testimony indicating that the original note had been marked paid and delivered to Mrs. Crabtree. The testimony shows, however, that moneys paid to the bank had been paid by Crabtree, and that the amount of the indebtedness had not been reduced below the amount of the original note, which had been renewed several times, ¡and may have been marked “Paid” on renewal. The president also testified that Mrs. Crabtree was never in the bank after the execution of the original note and mortgage there. The testimony supports the chancellor’s finding that the original loan had not been paid off; ¡and, even though it had, the mortgage could have been kept alive and necessarily continued to be an existing security for any and all renewals of the original note and any other indebtedness secured by it, so far as the rights of -the parties and privies are concerned. It could have been kept alive for other purposes' where the intention of the parties was, as here, that it should be, no rights of third persons or creditors having intervened. 41 Corpus Juris 787. We do not think there is any merit in appellant’s contention that the loan should be considered a gift or advancement by the husband to the wife, within the doctrine of the cases cited. A contrary intention was shown by the evidence on the part of the parties resulting in the mortgage given, charging the separate property with a lien for the payment of the loan, which the chancellor correctly found had not been, in fact, paid. Only the amount of money borrowed and used in the improvement of the wife’s property was charged against it, as secured by the lien under the mortgage, and we do not find it necessary to determine from the state of the record whether or not the wife’s separate property mortgaged to secure present and future indebtedness could be held to tbe payment of other moneys than the original loan, thereafter borrowed. We find no error in the record, and the judgment is affirmed.