Hoye v. Burford

Wood, J., (after stating the facts.) Passing over the objection of appellee that the exceptions of appellant to the rulings of the trial court were not embodied in his motion for new trial, and therefore were waived, and conceding that exceptions were properly saved, and that the errors of which appellant here complains are properly before this court for con - sideration, still we find nothing for which to reverse the judgment. Taking the grounds of the motion as appellant states them, the court did not err: “First, in refusing to declare the mortgage of March 11, 1895, void.” The mortgage recites: “Whei’eas, the said party of the first part is indebted to the said party of the second part in the sum of $1.50, evidenced by my promissory note of even date herewith, and to further secure all indebtedness that I owe said H. L. Burford,” party of the second part. It is conceded that the $1.50 expressly mentioned was not bona fide. But the 'proof showed that at the time the mortgage was executed there was a bona fide indebtedness of some $250 from the mortgagor to the mortgagee. The clause above set forth was all-sufficient to take that in. This point is ruled by Curtis v. Flinn, 46 Ark. 70, where the court, through JudgeGockrill, said: “If the mortgage contains a general description, sufficient to embrace the liability intended to be secured, and to put a person examining the records upon inquiry, and to direct him to the proper source for more minute and particular information of the amount of the incumbrance, it is all that fair dealing and the authorities demand.” Second. The mortgage was not barred by the statute of limitations. It is true, the note which the mortgage was given to secure had only been saved from the statute bar by reason of payments made thereon. But these kept it alive, and as the mortgage of record was not barred, and did not show the debt to be barred, it was not necessary that the partial payments made on the note should he indorsed on the margin of the record of the mortgage. Section 5094 of Sand. & H. Dig. does not require it in such a case, hut only in cases where the mortgage of record shows the debt to be barred. Then, in order that third parties be not misled, if, notwithstanding the mortgage of record shows the debt to be barred, the debt is not in fact barred by reason of partial payments, these must be entered on the margin of the record of the mortgage. Such we understand to be the object and the proper construction of the proviso to section 5094 of Sandels & Hill’s Digest. Affirm the judgment. Battle, J., absent.