Mullins v. Wilcox

Smith, J. Appellant purchased' a tract of land on April 29, 1912, without actual knowledge of a mortgage thereon which had been executed by her grantor. This mortgage was executed May 1, 1902, to secure the payment of a note due May 1, 1907. This mortgage had been duly recorded, but no payments of any kind were noted on the margin of the record, nor were there other marginal endorsements to indicate that any agreement had been made extending the time of payment of the debt there secured. An agreement in writing was made, how7 ever, between the mortgagor and mortgagee whereby the time of payment was extended for five years or to May 1, 1912, but, as has 'been said, there was no marginal notation to indicate the existence of such agreement. ‘Appellant says, therefore, that the lien of this mortgage is barred under the provisions of Section 5399 of Kirby’s Digest. A similar contention was made in the case of Austin v. Steele, 68 Ark. 348, and (we quote the syllabus) if was there said: “The statute providing that payments on a mortgage debt shall not operate to revive the debt, so far as the rights of third parties are affected, unless the mortgagee ‘ shall, prior to the expiration of the period of the statute of limitation, indorse a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded’ (Sand. & H. Dig., § 5094, Kirby’s Digest, § 5399) does not apply where the mortgage debt is kept alive by subsequent written agreement.” Appellants were not, therefore, entitled to have the mortgage .canceled as prayed in their complaint, which was filed August 23, 1913, and the decree denying that relief is,- therefore, affirmed.