Bank of Dyer v. Cole

Humphreys, J. The questions presented for determination on this appeal grow out of a contest between appellant and appellee, J. H. Cole, as to the priority of mortgages held by each on the lands of J. F. Davidson. On the 17th day of October, 1917, J. F. Davidson and his wife, B. Davidson, executed a mortgage on the following described real estate in Crawford County, Arkansas, to-wit: W½ NW, 35-10-30, 80 acres; W½ NW SW, 35-10-30, 20 acres; W½ SW SW, 35-10-30, 20 acres, to J. H. Cole to secure a note dated October 17, 1917, for $6,000, which was immediately recorded, and upon which $4,967.63 was due May 5, 1922, the day judgment was rendered in this case. On the 5th day of May, 1921, the Davidsons executed a mortgage to appellant to secure , two notes, one for $885.85 and the other for $3,600, upon the following described real estate in Crawford County, Arkansas, to-wit: W½ NW¼, W½ NW¼ SW¼, and W½ SW¼ SW¼, all in section 35, township 10 north, range 30 west. The mortgage was recorded May 27, 1921. On the 5th day of May, 1922, the day judgment was rendered in this case, $4,734.02 was due upon the mortgage. In the mortgage executed, by the Davidsons to J. H. Cole the $6,000 note was described as follows: “Whereas, the said J. F. Davidson and B. Davidson are justly indebted unto the said J. II. Cole in the sum of six thousand and no/100 dollars, evidenced by a promissory note of even date for six thousand dollars, with interest from date at the rate of ten per -cent, per annum, if interest be not paid at interest paying time to become principal and bear the same rate of interest.” The note was not stamped with an internal revenue stamp, and appellant objected to its introduction in evidence for that reason, which objection was overruled by the court. The trial court rendered a judgment against J. F. Davidson in favor of appellant and appellee, J. H. Cole, for t'he respective amounts due them, and decreed a foreclosure of the lands to pay same, but declared the mortgage lien of J. H. Cole prior and paramount to that of appellant. Appellant contends that the court erred in giving preference to the lien of said appellee for three reasons. First, that the description of the lands in the Cole mortgage Was indefinite; second, that t'he $6,000 note was not sufficiently described in the mortgage; third, that the note was not admissible in evidence because it had not been stamped -with an internal revenue stamp. The objection made to the description of the lands was that the words “section” before 35, “township” before 10, and “range” before 30, must be inferred in order to definitely describe the lands. We do not think the certainty of the description was dependent upon mere inference. The lands were described as being in Crawford County, Arkansas. The calls in the first part of each description referred unmistakably to United States Grovernment surveys. In government surveys lands are described as being in -sections, townships and ranges in the order mentioned. It is a necessary implication therefore that the figures 35-10-30, used in connection with government surveys, mean section 35, township 10, range 30. The base line is south and the meridian line east of Crawford County, so the lands are situated necessarily in township 10 north, range 30 west. We do not think a surveyor would have any trouble in locating the lands from the description in the mortgage. The $6,000 note was sufficiently identified in the mortgage. The date and amount were given, together with the interest it bore. The only requirement is that the description be sufficient to put interested parties upon inquiry, which, when followed up, will inform them of the extent of the incumbrance. Word v. Cole, 122 Ark. 457; Blackburn v. Thompson, 127 Ark. 438. The note was admissible in evidence without being stamped. The act of Congress of October 3, 1917, did not require notes to be stamped until the first day of December of that year. 40 U. S. Stat. 319. The Stamp Act of Congress of 1914 was repealed by an.act of Congress of October 3, 1916, and the clause in the Stamp Act of. 1898, making unstamped notes inadmissible in evidence, had long since been repealed by implication. No error appearing, the decree is affirmed.