Henry v. Union Sawmill Company

Hart, J., (after stating the facts). The evidence introduced by appellee tends to show that J. D. Nelson, the trustee named in the trust deed, became sick, and J. S. Alphin, to whom the deed of trust had been transferred by J. it. Plair, named J. K. Mahony as a substitute trustee. Mahony gave notice of the time, terms and place of sale, and caused said notice to be duly published in a weekly newspaper of bona fide• circulation -in Union County, Arkansas. Mahony also caused the land to be appraised, and sold it for more than two-thirds of its appraised value, as required by statute. J. S. Alphin bid the sum of $635, and, this being the highest bid, the land was struck off to him, and Mahony, as trustee, executed a deed to him in accordance with the provisions of the deed of trust. Alphin then took possession of the land, and subsequently sold it to the Union Sawmill Company. Counsel for appellants now contend that the deed of trust executed by Tom. Henry and Kansas Henry, his wife, to J. R. Plair, is invalid because it appears that their signatures were made by mark, and that there is no attesting witness thereto. J. C. Wallace was a witness for appellees. According to his- testimony, he was the officer before whom the deed of trust was acknowledged by Tom' Henry and Kansas Henry on October 3,1914. Hé read over the deed of trust to them and explained its provisions. He also read the note for $500 to them, and they executed their signatures to it by mark. He did not write his name as an attesting witness thereto, because he. forgot to do so. Wallace certified that the grantors, Tom Henry and Kansas Henry, his wife, had signed the deed of trust in his presence, and regarded this as sufficient. The certificate of acknowledgment to the deed of trust shows that Tom Henry and Kansas Henry, his wife, signed the deed of trust and acknowledged its execution before J. C. Wallace. In the absence of an affirmative showing that the note and deed of trust were not executed as they purport to have been, they were just as effective as if signed by appellants’ written signatures. A signature to a paper by mark, made by a person for the purpose of identifying himself as a party ’ thereto, was good at common law without any attestation thereof by a subscribing witness: The mark of one who cannot write is not a primd facie signature, unless the person who writes the name writes his own name as a-witness to it; but it may be proved as genuine by other testimony, though there be no attesting witness to it. Ex parte Miller, 49 Ark. 18, 3 S. W. 883; Ward v. Stark, 91 Ark. 268, 121 S. W. 382; and Nail v. Kirby, 162 Ark. 140, 257 S. W. 735. It is next contended by counsel for appellants that the deed of trust is void for' usury. On this point the testimony of appellants is to the effect that Tom Henry only owed Plair $143, and that a note was executed for $500, for the purpose of enabling Henry to secure future advances, if needed, to make a crop, and that no such future advances were made. If this testimony be true, it does not help the case of appellants any. As between the parties, parol evidence is admissible to show the true character of a mortgage and for. what consideration it was given. Although it is for a definite sum and secures the payment of notes for definite amounts, it may be shown that it is simply one for future advances. Jones on Mortgages, 7th ed., § 384; Curtis & Lane v. Flinn, 46 Ark. 70; and Blackburn v. Thompson, 127 Ark. 438, 193 S. W. 74. Hence, under appellants ’ own testimony, there is no taint of usury. It is next insisted that 'no statement of the account was served upon appellants by Alphin at the time of foreclosure. Notice of sale was given by publication, and it was not necessary to serve a statement of the account. Wilkinson v. Hudspeth, 134 Ark. 132, 203 S. W. 263; and Straughan v. Bennett, 153 Ark. 254, 266 S. W. 76. It is also contended that appellants had paid off the deed of trust and that the foreclosure and sale under it were fraudulent. In the first place, the record shows that the mortgage was given by Tom Henry and Kansas Henry, his wife, to Plair for $500, evidenced by note for that amount. The note and mortgage were transferred by Plair to J. S. Alphin before they became due. J. S. Alphin was a bona fide purchaser for value. . Plair was indebted at the time to Alphin, and transferred the note and deed of trust in question to Alphin in part payment of the indebtedness. Alphin had no notice of any defect or defense to the note. One who takes negotiable paper before maturity, as security for a debt, without notice of any defect therein or defense thereto, is a bona-fide holder in due course of business for value, within the statute. Newell Contracting Co. v. McConnell, 156 Ark. 558, 246 S. W. 854; and State National Bank of Texarkana v. Birmingham, 166 Ark. 446. Moreover, we do not think that appellants have sustained their contention that there was fraud in the foreclosure of the deed of trust. They testified • that they only owed $143 to Plair and that they had paid him this amount. They claim that the reason for the execution of a note for $500 was for future advances. They testified that the future advances were not made. Their testimony upon this branch of the case is not consistent with the attendant circumstances. They afterwards paid rent to Alphin, and thereby recognized him as the purchaser of the land at the foreclosure sale. Plair had been dead for three or four years before the instigation of the present suit, and appellants knew this.- It is hardly.probable that they would have waited so long to assert their claim if it had been a bona fide one. The natural thing for them to have done, when Alphin claimed to be owner of the land as purchaser at the foreclosure sale, would have been to have gone to Plair and reminded him that the indebtedness secured by the deed of trust had been paid in full. Instead of doing this, they waited until after Plair’s death before asserting their claim to the land, and, in the meantime, they had been recognizing Alphin as the owner of the land. It is also contended that the description of the land in the deed of trust is void on account of being indefinite. The description as contained in the deed - of trust, is as follows: “SW!4 SEi/4 and SE% SW14 section 21, township 17 south, range 12 west, 80 acres, the same now being in possession of parties of the first part, and all cotton and corn which the said party of the first part, shall make or cause to be made this year, in the county of Union and State of Arkansas, aforesaid.” This description under- the Government surveys shows that the land is situated in Union County, Arkansas. Besides, it recites that the land is iii possession of the grantors in the deed of trust and that they have mortgaged all the cotton and corn which they shall make in Union County, Arkansas, in that year. This shows inferentially that the land is situated in Union County, Arkansas. Tyson v. Mayweather, 170 Ark. 660, 281 S. W. 1. The result of our views is that the decree of the chancery court is correct, and it will therefore be affirmed.