Foster v. Luck

Wood, J., (after stating the facts). Appellees insist that the appellants’ abstract does not comply with rule 9, and move to affirm the judgments because of noncompliance with that rule. We have been able to gather from appellants’ abstract, when aided by the abstract and statement in the ■briefs for the appellees, sufficient to give us a full understanding of the questions presented for decision so far as the decree in favor of the appellee Couch is concerned. The abstract of the pleadings and of the evidence shows that Couch claimed the roan mule in controversy under a deed of trust executed January 20, 1906, and endorsed, “Filed but not recorded,” and “Filed January 23, 1906.” From the testimony of Couch, as abstracted, it appears that the debt of 1906, which the mortgage on the roan mule was given to secure, was not paid, and it appears from the statement of the counsel for appellee Couch that this debt was evidenced by a promissory note. There is no showing in the record that the debt was not evidenced by a promissory note; there is no showing in the record that it was barred by the statute of limitations •at the time of the death of Burris. The finding of the court that this debt of Burris to Couch was not paid and that it was a valid and subsisting lien and paramount to the lien of Foster is not clearly against the weight of the evidence. The burden to prove payment was on appellant Foster, and he has not done so. The endorsement, “filed but not recorded,” was sufficient to meet the requirements of the statute. See Smith v. State, 40 Ark. 431; Price v. Skillern, 60 Ark. 112; First Nat. Bank v. Bedingfield, 83 Ark. 109-116; Kirby’s Dig., § 5407. Tbe abstract, so far as tbe decree in favor of appellee Luck is concerned, is not sufficient to give the court a full understanding of all tbe questions presented. It could not be determined whether tbe court erred in its findings and decree in tbe absence óf tbe specific terms and.conditions in tbe deeds of trust upon which Foster relies to show error in tbe court’s finding, being set forth. As it was purely a question of fact as to whether these accounts bad been paid, tbe substance of all tbe evidence bearing upon that subject should have been abstracted. While there is a statement in tbe abstract of appellant to tbe effect that Foster’s note for $590.72 and also for $345, and all other indetedness due before foreclosure are secured by the deeds of trust of even date with note on real estate as follows (describing tbe real estate), this is a mere conclusion of counsel. No correct page of tbe transcript is given showing where tbe deeds of trust are found containing tbe alleged provision and tbe court can not rely upon tbe conclusion of counsel “that all other indebtedness due before foreclosure is secured by tbe deed of trust,” when such provision from tbe deed of trust itself is not set forth and no correct citations made to tbe record where such provision may be found. Tbe court will not explore tbe record to ascertain whether tbe indebtedness due on tbe respective accounts was included, in tbe deeds of trust of March 9, 1906, and February 1, 1908, and tbe testimony is not abstracted sufficiently to show that if such debts existed that they were not paid. See Jett v. Crittenden, 89 Ark. 349, and cases cited; Springfield v. Steen, 99 Ark. 242; Queen of Ark. Ins. Co. v. Royal, 102 Ark. 96. Therefore, tbe record, as abstracted, does not show that tbe finding and judgment of tbe court as to tbe account alleged to be due appellant Foster for tbe year 1906 is erroneous. In tbe absence of an affirmative showing in tbe record of error in tbe judgment the same must be and is affirmed.