ARK.] HENRY V. UNION SAWMILL COMPANY. 1023 • HENRY V. UNION SAWMILL COMP,ANY. Opinion- delivered October 25, 1926: SIGNATURES—USE OF MARK.—The mark of one who cannot write is not a prima facie signature, unless the pei • son who writes the name writes his own nanie as a witness to it, Vut it may be proved as genuine by other testimony, though there be no attesting witness to it. - - MORTGAGES—EVIDENCE AS TO C,OSIDERATION.-:-4AS between the parties, parol evidence is admissible -to . show -the. true character and consideration of the mortgage. - MORTGAGES—PAROL• EVIDENCE AS TO CONSIDERATE:IN.—As between the parties to a mortgage, although it .is .for a. definite sum -and secures the payment, of notes for definite: amounts, it may be shown that it is simply one for future advances. MORTGAGES—FORECLOSURE UNDER POWER OF . SALE-7NOTICE.—In a foreclosure sale under a Power in a d' eed of trust, where notice of the sale was given by, publication, it viSs Unnecessary to serve a statement of the account on the grantors. 5. BILL§ AND NOTES—BONA FIDE HoEDER.z—One taking 'negotiable paper before maturity as security for a debt without notice of any defect therein or defense thereto. is a bona.fide l holder in due coutse of business . for value . within the; statute:. ,. MoRTGADEs--,FRADD IN •FOREGLOSURE.—In •a . suit to. cancel a trustee's . deed for fraud, testimony. of, the, grantors that the secured indebtedness had been discharged held insufficient to show fraDd where . plaintiffs adorned to the purchaser -at foreclosure sale for three or four ' years before' 'suing:, Appeal from Union Chancery . C - purt, . Second Division; George M. LeGroy, Chancellor ; affirmed. STATEMENT RY THE COURT. Tom Henry and . Kansas Henry, hiS wife, brought suit in equity against J. S. Alphin to Canc61 . a deed of trust froth them to J. R. Plair to , eighfy acres of land in Union County, Arkansas, and a trustee's' deed to the same land -froth the trustee to J. S. Alphin at a foreclosure sale under the power contained in the deed Of, trust. 'Subsequently, the Union Sawthill Company instituted an action of ejectment against Tom Henry, in the circuit court, to recover said land. On motion of Tom Henry, the action
1024 HENRY V. UNION SAWMILL COMPANY. [171 in the circuit court was transferred to equity and consolidated with the suit in the chancery court. The record shows that, on October 3, 1914, Tom Henry and Kansas Henry, his wife, executed a deed of trust to J. R. Pla • r to eighty acres of land in Union County, Arkansas, to secure an indebtedness of $500, evidenced by the note of Tom Henry and Kansas Henry, payable to the order of J. R. Plair on October 1, 1916, with interest at ten per cent. per annum from date until paid. J. D. Nelson was named as trustee in the deed of trust, and it contained the usual power of sale. It provided that, if Tom Henry and Kansas Henry should pay the note when due and all other indebtedness due Plair, the deed of trust shouloj elDe void. In the event of their failure to pay the noter any other indebtedness due Plair, it was provided that the trustee should sell said land for the purpose of paying the indebtedness in the manner and under the terms prescribed in the deed of trust. Kansas Henry joined with her husband in the execution of the deed of trust. The deed of trust and the $500 note were transferred by J. R. Plair to J. S. Alphin on October 4, 1914. The deed of trust and the note purport to have been signed by Tom Henry and Kansas Henry by their marks. The deed of _trust was acknowledged by them before J. C. Wallace on the date of its execution, and has been duly filed of record. On the 10th day of January, 1907, Tom Henry- and Kansas Henry, his wife, conveyed the timber on said land to the Union Sawmill Company, and it was given ten years within which to cut and remove the timber. On the 1st day of March, 1921, J. S. Alphin conveyed the land to the Union Sawmill Company, reserving a one-eighth interest in the oil, gas and other minerals in said land for a period of fifteen years. Tom Henry and Kansas Henry made default in the payment of the indebtedness secured by the deed of trust as above set forth, and, on account of the illness of J. D. Nelson, J. K. Mahony was appointed substitute trustee
ARK.] HENRY V. UNION SAWMILL COMPANY. 1025 for the purpae of foreclosing the deed of trust under the power of sale. The sale was made in the manner and under the-terms prescribed in the deed of trust, and-J..S. Alphin became the purchaser thereof for the sum- of $635. The deed of trust recites that this was the highest bid for the land, and was more than two-thirds of its appraised value. • It also recites that notice of the time, terms and place of sale had been made in a newspaper of bona fide circulation in Union County, Arkansas. - The above facts are undisputed. Other faCts bearing on the issues'involved in the appeal will be stated under appropriate headings in the opinion. The chancellor found the issues in favor of J. S. Alphin and the Union Sawmill Company, and a decree was entered of record in accordance with his findings. . To reverse that decree, Tom Henry and Kansas Henry have duly prosecuted an appeal to this court. John, Bruce Cox, Stewart & Oliver, E. W. McGoughr and J. R. Wilson, for appellant. • Mahony, Yocum & Saye and Gaughan & Sifford, for appellee. • HART, J., (after stating the facts). The evidence introduced by appellee tends to show that J. D. Nelson, the trustee named in the trust deed, became sick, and 3.S. Alphin, to whom the deed of trust had been transfefred by J. R. Plair, named J. K. Mahony as a substitute trustee. Mahony gave notice of the time, terms and place of sale, and caused said notice to be duly published in a weekly newspaper of bona fide circulation in Union County, Arkansas. Mahony also caused the land to be appraised, and sold it for more than two-thirds of ith appraised value, as required by statute. J. S. Alphin bid the sum of $635; and, this being the highest bid, the land was struck off to him, and Mahony, as trustee, executed a deed to him in accordance with the provisions of the deed of trust. Alphin then took possession of the land, and subsequently sold it to the Union Sawmill Company.
1026 HENRY V. UNION SAWMILL COMPANY. [171 Counsel for appellants now contend tliat the deed of trust executed by Tom Henry and 'Kansas Henry, his wife, to J. R Plair,' is invalid because it 'appears' that their signatnres were made by mark, and that there , is no attesting witness thereto. J. C. Wallace was a witness for appellees. According to his testimony, he was the officer before whom the deed of trut was acknowledged by Tom Henry 'and Kansas Henry on October 3, 1914. He read over the deed of trust to them and explained its provisions. He also read the note for $500 to them, and they eXecuted their signatures to it by mark. He did not write his name as an attesting witness thereto, because he forgot to do so. Wallace certified•that the grantors, Tom Henry and Kansas Henry, his wife, had signed the deed of trust in his presence, and regarded this as sufficient. The certificate of acknowledgment to the deed of trust. shows that Torn Henry and Kansas Henry, ,his wife, signed the deed of trust and acknowledged its execution before J. C. Wallace. . ,In the absence of an affirmative showing that the note and deed of trust were not executed as 'they purport ° to have been, they were just as effective as if signed by appellants' 'written signatures. A signature to a paper by rnark,'made by a person tor the purpose of identifying himself "as a party thereto, was good at common law without' any attestation thereof by a subscribing witness. The mark of one who cannot Write is. not a prima facie signature, , unless the person who write g ' the name writes his own name as a witness to it ; but it may be proved' as genuine by other testimony, though there be no attesting witnes's fo it. Ex parte Miller, 49 Ark. 18; 3 S. W. 883; Ward v. Stark, 91—A-iic. -268121 S. W. 382rand-Nail Kirby, 162 Ark. 140, 257 S. W. 735. It is next eontended by counsel for appellants that the deed of trust is void for usury. On this 'point the testimony of appellants is to the effect that Tom Henry only owed Plair $143, and that a note was executed for $500, for the purpose of enabling Henry to secure future - advances, if needed, to make a crop, and that no such
ARK.] HENRY V. UNION SAWMILL COMPANY. 1027 future advances were made. If this testimony be true, it does not help the case of appellants any. As between the parties, parol evidence is admissible to show the true character of a mortgage and for what dOnsideration it - was given. Although it is for a definite sum and,secure's the payment of notes for definite amounts, it may be. shown that it is simply one for future advances. Jones On, Mortgages, 7th ed., § 384; Curtis & Lane v. Flinn,. 46 Ark. 70; an . d , Blackburn v. Thompson, 127 Ark. 438,-193 S. W. 74. Hence, under appellants' own testimony, there IS no taint of usury. , It is next insisted that no statement of the aceount was served upon appellants'by Alphin at the time of foreclosure. Notice of sale was given by publication, and it was not necessary to serve a statement of the account. Wilkinson v. Hudspeth, 134 Ark. 132, 203 S. W. 263 ; and Straughan y. Bennett, 153 Ark. 254, 266 S. W. 76. , It is , also contended that appellants had paid off the deed of trust and that the foreclosure and sale under it were fraudulent. In the first place, the record shOwS that ' the , mortgage was given by Tom HenrY and Kansas . Henry, his wife, te • Plair for $500, evidenced by note for. that ,amonnt. The note and mortgage . were .transferred by: Plair, to J. S. Alphin before they became due. J.'S.; Alphin waS a bona . fide purchaser for .. value. Plair waS indebted at the time to Alphin, and 'transferred the note and deed of trust in question to AlPhin . in part paYinent of the indebtedness. Alphin had no' notiCe of . any defect' or defense to the note. One WhO . takes negotiale paper before maturity, as security for a _debt, walkout ndtice, of any &feet therein or 'defense thereto, is , a bona fide holder in, due course pf .thasiness for value, within the statute. 'Newell Contracting Co. v. McCOnnell, 156' Ark. . 558, 246 S. W. 854; and State NatiOnal Bank Of Tearkanez. v. Birmingham 166 Ark. 446. . Moreover, we dO not think 'that appellants have sustained their contention that there was' fraud in the foreclosure of the deed of trust. ' They testified that " • they only owed $143 to Plair and.that they . had paid
1028 HENRY V. UNION SAWMILL COMPANY. [171 this amount. They claim that the reason for the execution of a note for $500 was for future advances. They testified that the future advances were not made. Their testimony upon this branch of the case is not consistent with the attendant circumstances. They afterwards paid rent to Alphin, and thereby recognized him as the purchaser of the land at the- foreclosure sale. Plair had been dead for three or four years before the instigation of the present suit, and appellants knew this. It is hardly probable that th6y would have waited so long to assert their claim if it had been a bona fide one. The natural thing for them to have done, when Alphin claimed to be owner of the land as purchaser at the foreclosure sale, would have been to have gone to Plair and reminded him that the indebtedness secured by the deed of trust had been paid in full. Instead of doing this, they waited until after Plair's death before asserting their claim to the land, and, in the meantime, they had been recognizing Alphin as the owner of the land. It is , also contended that the description of the land in the deed of trust iS void on account of being indefinite. The description as contained in the deed of trust is as follows : " SW1 / 4 SE 1/ 4 and SE 1/ 4 SW 1/4 section 21, township 17 south, range 12 west, 80 acres, the.same now being in possession of parties of the first part, and all cotton and corn Which the said party of the first part shall make or cause to be made this year, in the county of Union and State of Arkansas, aforesaid." This description under the Government surveys shows that the land is situated in Union County, Arkansas. Besides, it recites that the land is in possession of the grantors in the dee -d of ttust and that they-have mortgaged all the cotton and corn which they shall make in Union County, Arkansas, in that -year.. This shows inferentially that the land is situated in Union County, Arkansas. Tyson v. Mayweather, 170 Ark. 660, 281 S. W. 1. • The result of . our views is that the decree of the chancery court is correct, and it will therefore be affirmed.
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.