826 MCPADDIN v. • BELL. [.168 ■ • , , MCFADDIN yr. !BELL: - .0pinion.delivered May 4,4925!:: 1.. MORTGAGESRECITAL OF ; F4eIOR IFICUMBRANCE,A general' recital • in a mortgage 'Or conveyance 'that , it is made ' g ithject tir brances againat the property doeS. not ''eStoP • the, niorkgagee , giantee from attacking the ;validity, of the: ineumbraneei. 2.: MORTGAGES—RECITAL OF mrtuuRRANcEs,rBefore a ,niortgagee. • , grantee will , be estopped to deny, the validity of , ta ,prior , hrance by' recitals in his conveyance, they must amonnt tO ,a recognition on his • part that the outstanding iiicuinbrances ; are ' valid; and nothing short of a : certain and definite 'reference ta • . the particular inCumbrance will evidence an intention,to recognize )11'i 3, , MORTGAGES—RECITAL OF p■TcumpRAN • cs.--T TRecitals ,in a ,mortgage, , that it is taken subject to ell mortgages , against it On , record amount to a recognition by the mortgagee that iuch 'mortgages as were on- record Where priOr valid liens on the . land; aricf Pre-! elude the mortgagee from' pleading the statute of limitation.' Appeal ffom sSeVier Chanc ' eiy CoulifC. E. Jokasoni Chancellor (affirmed. " • " ' I E. F. MeFaddin, for appellant: 'W. C. Rodgers, foi appellee. HumT9Egtuirs, J. • This. suit was brought in the chin.- eery court of Sevier 'County by appellee against C. W. Wright to foreclose a mortgage upon a ;certain 160-acre tract of land in said comity, executed by Wright and:his
MCFADDIN V. BELL 827 wife to 'her on January 12, 1916, to ' secure a note for $1,20k . payable 'January -12,.1917.. -The mortgage Was recorded in April, 1916. •, T Appellant, 'who was nihdd 6 , party defendant in the suit because he claimed the land free ot the mortgage under purchase from; M. E. Sanderson, trustee in bankruptcy. of the estate of C: W. Wright, 'filed an answer :denying the material allegations in the and a cross--bill alleging that appellee Was • barred- from foreclosing the hen . mider '§§ 7382 and . 7408 of Crawford & Moses' Digest. • 'The canse was submitted tOthe-cOurtupon the' plead-- ings'and an akreed Statement of facts, which 'resulted in a finding that appellee 'S mortgage constituted a valid and paramount to the'claim of appellant, and 'deCree foreclosing 'same,' from which is this appeal. '• The facts necessary to a determination of the . only question raised oil the ' appeal are as follOWS : On ;Tan-'nary 12; 1916, C. W. Wright and his * wife executed a 'mOrtage on said tract of land to secure h note in the sum of $1,200, due one year after date. , Thereafter .he Made twO $45 payrnents upon the note, one on .3111y 1, 1918, and the other on March 4, 1920, but these.payments 'were not indorsed . on . the margin Of the record where the tinortgage`was' recorded.. C. W. ,WHght Was adjudged a bankrupt, and, under the order of the court, he eiecnted a quitclaim deed cOnveying this and all other lands owned bry hini to : M. E. SanderSon, who had been appointed trustee in bankruptcy for his estate. The lands; inCluding the 160-acre tract, were sold, and appellant became the pnrchaser of them at the . sale. The deed -was executed to him on Augrist 18, 1922; by the °trustee in bankruptcy, Which Contained two recitals that are determinative , of the •issue involved on this appeal. ; The first reCital appears in the preamble of 'the deed, and , is aS TolloWs : "Said E. F. Mel l addin, trutee,'buy-big the real estate , :subject to all . mortgageS against : it, : on record."
828 MCFADDIN v. BELL. 1168 The :second recital appears in the habendum clause of the deed, and is as follows : " The said E. F. McFaddin, trustee, taking the property subject to the mortgages against it, but not personally assuming any of such indebtedness." Appellant contends for a reversal of the decree upon the ground that the deed , secured by the mortgage was barred as to third parties, because .the payments made by the mortgagor were not indorsed on the margin of the record as required by §§ 7382 and 7408 of Crawford & Moses' Digest. Appellee admits that appellant is a third party to the mortgage, and that, prior to the institution of the suit, sufficient time had elapsed under the statute of limitations to prevent the foreclosure of the mortgage against a purchaser of the land, who had not estopped himself by the assumption or recognition of the mortgage. Appellee insists, however, that appellant recognized this mortgage by the recitals in the deed which he accepted, and that, by such recognition, he estopped himself from pleading the statute of limitations. The rule of law is •that a general recital in a mortgage or conveyance to the effect that the instrument is made subject to the incumbrances against the property does not estop a mortgagee or grantee from attacking the validity of such incumbrances. The doctrine is that, before the mortgagee or grantee will be estopped to deny the validity of prior incumbrances upon land by recitals in the conveyance, they must amount to a recognition on his part that the outstanding incumbrances are valid, and that nothing short of a certain and definite reference in some way to particular incumbrances thereon will evidence an intention on his part to recognize such incumbrances. Clapp Brothers v. Halliday Brothers, 48 Ark. 258 ; Arkansas National Bank v. Boles, 97 Ark. 43 ; Kay v. Castleberry, 99 Ark. 118 ; Reidnbiller v. Comes, 158 Ark. 21. The recitals in the deed to appellant from the trustee in bankruptcy should be read together so that
'ARK.] 829 both may stand, if possible. The first clause specifically referred to mortgages on record, Meaning mortgages on record which were valid, subsisting obligations between the original parties to the mortgage. The Second clause, standing alone, made no reference to any particular mortgage so as to . identify it, but, when read in connection with the 'first clause, Meant mortgages of record good between the original parties. There is no conflict between the tWo clauses, the latter relates to the first and was intended as a mere repetition of the first. When the two clauses are read together and given their, proper meaning, they amount to a recOgnition on the part , of appellant of the mortgage in question as a valid lien upon the land. No error appearing, the decree is affirmed. MCCULLOCH, C. J., (dissenting). My conclusion is that the recital in the deed under which appellant holds, with respect to prior • mortgages, was general, not specific, and did, not constitute a recognition pf the continued existence and efficacy of •the mortgage to apliellee. The acceptance of the deed by appellant with that recital, in it did not therefore remove the statute bar • nor constitute a new point from which the statute becran to run. WOOD, J., joins in this dissent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.