Tate v. Dinsmore

Kirby, J., (after stating the facts). (1) There is no merit in the contention that the deed of trust.was a California contract and that the laws of that State govern in the procedure for the sale of lands thereunder. “The general rule without any diversity of opinion is that the alienation, transmission and descent of real estate is governed by* the laws of the country or State in which it is situated,” as said, in Crossett Lumber Co. v. Files, 104 Ark. 602. (2) The lands conveyed by the deed of trust are situated in this State and their sale under the power contained in the deed must have been in accordance with our laws regulating such sales in order to be valid and this without regard to where the contract was entered into or with what intention made. (3) Our law requires that all lands sold under mortgages or deeds of trust shall be first appraised and shall not sell for less than two-thirds of the appraised value thereof unless at a second offering as provided. Kirby’s Digest, § § 5416, 5418. (4) A deed of trust is in legal effect a mortgage and sales made under the powers contained in mortgages and deeds of trust are void if not in compliance with the statute requiring such appraisement of the lands before sale made. Craig v. Meriwether, 84 Ark. 303; Kelley v. Graham, 70 Ark. 492; Ellenbogen v. Griffey, 55 Ark. 274; Cross v. Fombey, 54 Ark. 184; Turner v. Watkins, 31 Ark. 437. (5-6) Under our law, the mortgagor and his successors in interest are given one year from the date of sale in which to redeem the mortgaged lands by payment of -the amount for which the property is sold and 10 per cent interest thereon and the costs of the sale. Kirby’s Digest, § 5416; Allen v. Swoope, 64 Ark. 576; Wood v. Holland, 57 Ark. 198; Fields v. Danehower, 65 Ark. 392. The lands herein were not appraised 'before the attempted foreclosure sale thereof under the deed of trust in California and the testimony shows that the appellees are the successors in interest to the mortgagor and tendered the amount of money required by law tó redeem the lands from the mortgage sale within one year from the date thereof ,and continued the tender in force by bringing the money into court. This would have effected a redemption from the sale if it had been valid even, and resulted in a satisfaction of the mortgage lien, which discharged the lands therefrom. • It is next contended that it was not the intention of any of the parties to the contract that there should -be a right of redemption of the lands and that such right was waived by the execution of the deed of trust in the State of California under the laws of which State no redemption was permitted. (7) As already said the laws of this State control and govern in all matters relating to the alienation, transmission and descent of real estate situate here and since the right of redemption is given by our statute, it could be 'exercised unless waived in a manner recognized under our laws. The statutes, sections 5416, 5420, Kirby’s Digest, provide a right of redemption to the mortgagor, his heirs and legal representatives from all sales of real property under mortgages and deeds of trust, and in all cases of such sales under -an order or decree of the chancery court in the foreclosure of mortgages and deeds of trust, “that the mortgagor may waive such right of redemption in the mortgage or deed of trust so executed and foreclosed. ’ ’ This deed of trust was not -foreclosed ■in the -chancery court, and there are no expressions or terms in the deed of trust, indicating any intention upon the part of the mortgagor to waive the right of redemption and it appears to be the manifest purpose of the law to require such intention expressed in the deed of trust or mortgage foreclosed in order to the validity of any such waiver. .(8) The successors to the mortgagor’s interest had the right to redeem the lands from the foreclosure sale within the time provided by law and the evidence is sufficient to show they availed of this right. The decree of the chancellor was right and it is affirmed.