Dickinson v. Duckworth

McCulloch, J., (after stating the facts.) 1. There is nothing in the proof to sustain the contention of appellants that the debt and lien of Stroud against J. W. Duckworth was merged in the notes subsequently executed by Dickinson to Stroud. The testimony of Dickinson does not show any agreement concerning the matter, further than that he was to get a clear and unincumbered title upon the payment of his own notes aggregating a like amount as the Duckworth note. Stroud testifies that he retained the Duckworth note, and credited all amounts received on that note, as well as on the Dickinson notes. No presumption of a waiver of the lien for the Duckworth note arose from the acceptance by Stroud of the Dickinson notes. Both liens were consistent with each other, and Dickinson could not complain except that after payment of his own notes he could, under Stroud’s warranty, have disputed Stroud’s right to assert any further lien on the half interest conveyed to him. Inasmuch as he has not paid his notes, and the court below allowed him to redeem by payment of the amount of balance due on his notes and interest, he cannot complain. Nor can appellant Sikes complain of the decree in this respect, for the reason that he was allowed to redeem the undivided half of the property on which he held a mortgage by payment of the prior mortgage debt of J. P. Duckworth which had been foreclosed. No harm resulted to him by any decree the court might have rendered concerning the Dickinson half of the property. This disposes, for the same reason, of appellants’ plea of limitation to the debts in the original foreclosure. 2. It must be conceded that appellants were necessary parties to the foreclosure suit under which appellee Duckworth obtained title, and their rights in the property were not cut off by the sale. Having been omitted from the foreclosure proceedings, what remedy, therefore, remained to them in the assertion of their rights ? A right merely to redeem from the lien which had been foreclosed, upon the payment of the debt, or the right to require a foreclosure order and a sale thereunder? While there is some conflict in the authorities, we think that by the decided weight of authority it is settled that a subsequent lienor, or holder of the equity of redemption, after foreclosure against the .original mortgagor, can only claim the right to redeem, where he has been omitted from the foreclosure suit. Wiltsie, Mortg. Foreclosures, § 160; Wiley v. Ewing, 47 Ala. 418; Corpentier v. Brenham, 40 Cal. 221; Hodgen v. Guttery, 58 Ill. 431; Gower v. Winchester, 33 Iowa, 303. This rule was adopted by this court in the case of Allen v. Swoope, 64 Ark. 576. In that case the appellee Swoope had acquired by purchase at tax sale the equity of redemption of the mortgagor of lands 'to the Real Estate Bank, and, having been omitted from the foreclosure suit, was held to be entitled only to redeem from the foreclosure sale. This court reversed the cause with directions to enter a decree permitting Swoope to redeem the land within a reasonable time, and, failing to do so, that' the title be quieted in the purchaser at the foreclosure sale. That is just what the court below did in this case, and no question is made as to the reasonableness of the time allowed for redemption, the parties agreeing upon a period of thirty, days. The decree is affirmed. Wood, J., not participating.