Newald v. Valley Farming Co.

HART, J., (after stating the facts). (1) It is first insisted by the plaintiff that the appeal of L. J. and S. E. Newald and the Dorough-Newald Company be dismissed because it was not taken within the time allowed by law. Appeals must be taken from judgments or decree® within six months, from the date of their rendition. Stephens v. Williams, 122 Ark. 255. It appears from the record that the decree of foreclosure and sale of the mortgaged premises was rendered on January 20, 1916. The appeal was not granted until November 21, 1917. This was more than 'six months from the date the decree was entered of record. Counsel for the defendants speak of this decree throughout their brief as being an interlocutory decree but we are of the opinion that it was a final one. In the case of Davie v. Davie, 52 Ark. 224, the court held (quoting from the syllabus): (2) “Where a decree determines the right to property, and directs it to ibe delivered up, or directs its sale, and the plaintiff is entitled to have the decree carried into imm.ediate execution, it is to that extent final and may be appealed from, although a further decree may be necessary to adjust an account between the parties. In such cases the appeal is allowed to prevent irreparable injury pending the suit. It is also allowed from a decree, which, without ending the suit finally, determines a distinct and severable branch of the cause.” To the same effect, see Beits v. Meriwether, 114 Ark. 289, and cases cited. An appeal may be taken from a decree of foreclosure and sale when the rights of the parties have all been settled and nothing remains to be done by the court but to make the sale and pay out the proceeds. The sale in such a case is the execution of the decree. Railroad Company v. Swasey, 23 Wall. (U. S.) 405; Whiting v. The Bank of U. S., 13 Peters (U. S.) 6; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, and McGourkey v. Toledo & Ohio Central Ry. Co., 146 U. S. 536. In the' last mentioned case the court said: “It may be said in general that if the court make a decree fixing the rights and liabilities of the parties, and thereupon refers the case to a master for a ministerial purpose only, and no further proceedings in a cohrt are contemplated, the decree is final; but if it refers the case to him as a subordinate court and for a judicial purpose, as to state an account between the parties, upon which a further decree.is to be entered, the decree is not final.” In Cooper v. Ryan, 73 Ark. 37, the court held a decree foreclosing a mortgage ,and appointing a commissioner to sell the mortgaged property is a final judgment from which an appeal must be taken. In Jones on Mortgages (7 ed.), volume 3, paragraph 1600, the author said: “A judgment which settles all the rights of the parties ahd directs a sale of the premises, .and that the defendant pay any deficiency which may arise after such «ale, is .a final decree from which an appeal may be taken; though in a limited sense it is interlocutory, inasmuch as further proceedings are necessary to carry it into effect. It leaves nothing further to be adjudicated. ’ ’ (3) The decree of January 20, 1916, was complete in itself and required no further judicial action for its execution. It found that the mortgage of the plaintiffs was a lien upon the property described in it; that the whole of the indebtedness was due .and payable and that .a sum certain was due the plaintiff. Judgment was rendered in favor of the plaintiff for that sum and the sale of the mortgaged premises was directed in the decree. The cross-complaint of the defendants, L. J. and S. E. Newald and the Dorough-Newald Company was dismissed. All of the issues raised by the pleading between the plaintiffs and these defendants were settled except as to whether or not the plaintiffs should be .allowed the ditch taxes for 1915, which it had alleged that it had paid. This did not require a judicial accounting between the parties. It is true the issues as to the interventions of Taylor, Terry and Morgan were reserved from the decree but the issues as. to them were separate and distinct from the issues raised in the foreclosure proceedings. And so, too, with regard to the issues raised by the other persons who had purchased tracts of land from the mortgagors after the execution of the mortgage. The decree of foreclosure found the amount of the debt secured by the mortgage and ascertained the property to be sold under it. A commissioner w.as appointed to take charge of the property and sell it under the directions provided for in the decree. Hence it will ¡be .seen that if no other action -had been taken after the rendition of the decree of January 20, 1916, the rights of the plaintiff, the mortgagee, and of the defendants, who were the mortgagors, would have been settled. Therefore the decree was final. The rights of the plaintiff and defendants to the foreclosure suit were settled by the decree of January 20, 1916. The reservation of the ditch taxes claimed to have been paid by the plaintiff did not, under the authorities above cited, make the decree an interlocutory one. Neither did the fact that they were subsequently allowed and added to the amount of the decree of January 20, 1916, and the further fact that a sale of the lands was again ordered, have that effect. The decree of January 20, 1916, remained in force until it was set aside by consent of the parties, or by a. valid order of the court. The decree was not even attempted to be set aside; but on the contrary its validity was expressly recognized in the decree of March 17,1917, and referred to. (4) Taylor, Terry and Morgan all purchased lands from the mortgagors and made a tender to the mortgagee of the pro rata amount, which they 'claimed released the land'they bought from the mortgagee. All of them entered into a contract for the purchase of the lands before January 20,. 1916, but only Terry made a tender before that time. They insist that the decree of January 20, 1916, was an interlocutory one, and they rely on the case of the St. Louis Union Trust Co. v. Chicot County Cotton-Alfalfa Farm Co., 127 Ark. 577, where it was held that the right to obtain a partial release from a mortgage under a contract conferring it, may be exercised after as well as before default in payment of the mortgage debt. As to the rights and interests of these parties, it does not make any difference whether or not the decree of January 20,1916, was final or interlocutory, nor do the facts bring them within the rule in the case just cited, for they did not comply with the .stipulations between the mortgagee and mortgagors under which they might have obtained a release from the mortgage as to the lands purchased by them by paying a certain proportion of the mortgage indebtedness. They made their tender under the release provision originally contained in the mortgage. This provision was superseded by the agreement made October 8, 1915, and entered of record on that date. Terry and Taylor were attorneys for the defendants ¡and made the stipulation for it. They submitted to the court for its approval their agreement and adjustment of all controversies involved and contained in the stipulation. The court approved their agreement and ordered it entered of record ,and that the case be continued for the purpose of enabling the parties to comply with it. It was contended by the plaintiff that the provision for a release contained in the original mortgage was inserted in it without its knowledge and consent after the original draft of the mortgage had been approved by it. On the other hand, it was the contention of the mortgagors that this provision was placed in the mortgage by the • express agreement of the parties. Testimony had already (been taken by the parties to establish their respective contentions. The stipulation of October 8, 19.15, by its express terms settled this controversy between the parties. It had the effect, not only to cancel the notice which the plaintiffs had inserted on.the margin of the record on the 30th of April, 1914, but it constituted a new agreement under which the lands might be sold and released from the mortgage. It appears from the record that the stipulation of October 8, 1915, was not complied with in any respect. No attempt was made by Taylor, Terry or Morgan to comply with its provisions. The tender made by each of them was in .accordance with the release provision in the mortgage; and, inasmuch as that provision had been superseded by the later agreement, it may be said that it was no tender at all, and for the reason that they failed to comply with the provision in regard to the release contained in the- stipulation of October 8,1915, they were not entitled to have any of the lands purchased by them released from the mortgage. The conclusion we have reached and the views we have expressed render it unnecessary for us to decide the. issues raised in regard to the purchases made by the other persons; for the decision of the court in regard to their rights and interests concerned only themselves and the plaintiffs, none of whom have prosecuted an appeal from the decree. The 'decree of the chancellor in regard to their rights ■and interests can not affect the defendants, L. J. and S. E. Newald and Dorough-Newald Company, because they did not appeal from the foreclosure decree and they can not be prejudiced by the court setting aside the contracts which they made with these parties. The rights of Taylor, Terry and Morgan can not be affected because, as we have already seen, they failed to make the tender under the stipulation of October 8, 1915, and therefore have no right to have the mortgage released as to the lands purchased by them. It follows that the decree will be affirmed.