McLain v. Jordan

Hart, C. J., (after stating the facts). The mortgage in favor of D. T. House was executed in December, 1921, and, according to the testimony of S. M. Jordan himself, he did not go into possession of the land until in February, 1922. He then went into possession of the land as purchaser under a mortgage foreclosure decree against J. H. McLain in favor of the Farmers’ & Merchants’ Bank. In June, 1922, the chancery court entered a decree of record allowing J. H. McLain to redeem the land from the foreclosure decree of the bank. The land was correctly described in the mortgage of House as being in section 16. By mistake it was described in the mortgage to Jordan as being in section 15, instead of section 16. The mortgage to Jordan was executed on the 11th day of February, 1921, and filed for record on the 30th day of March, 1921. The mortgage to House was not executed until the 12th day of December, 1921. The record of Jordan’s mortgage containing the description of the land as being in section 15 instead of in section 16, where it was actually situated, did not constitute constructive notice that it was intended to cover the lands in controversy. Storthz v. Bank of England, 123 Ark. 451, 185 S. W. 784, and cases cited. Jordan did not enter into possession of the land until in 1922 after the mortgage had been executed to House. The mortgage of House was filed for record in 1924, before the decree of the chancery court reforming the mortgage of Jordan. Therefore we are of the opinion thiat the mortgage of House was a superior and iprior lien on the land in controversy to that of Jordan, and the chancery court erred in not so holding. On the cross-complaint of McLain but little need be said. The testimony introduced by McLain to sustain his claim of damages for injury to his 'orchard, as abstracted in the record, is entirely too vague and general to afford him any relief. On this point counsel for Jordan abstracted his testimony, and, according to it, Jordan took good care of the orchard while he was in possession of the land as mortgagee, and did not in any wise damage it. No useful purpose could be served by reviewing and discussing in detail the evidence on this branch of the case. We deem it sufficient to say that we are of the opinion that the chancellor correctly held in favor of Jordan on the cross-complaint of J. H. McLain. We are of the opinion, however, that the .chancery court erred in holding that the mortgage of ¡3. M. Jordan was superior to that of D. T. House, and, for that reason, the decree in this respect will he reversed, with directions to the chancery court to enter a decree that the mortgage of D. T. House is superior to that of S. M. Jordan, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.