ARK.] FORT SMITH BLDG. & LOAN AsS'N v. HIGHT. 415
FORT SMITH BUILDING & LOAN ASSOCIATION v. HIGHT. .. 4-3984 • Opinion delivered October 11; .1935. 1. JUDGMENTDEFAULT JUDGMENT.—Where the coMplaint in a mortgage foreclosure suit alleged that a certain defendant had previously purchased the mortgaged property and agreed to assuine the mortgage indebtedness, a personal judgment by default against such defendant will be affirmed on appeal in absence of • evidence that ihe judgment was procured by fraud. 2. EXECUTION—EFFECT OF SALE.—Evidence held to support a finding that an execution purchaser acted as trustee for the judgment creditor, so that a junior judgment lien which the judgment creditOr had ;previously -acquired by assignment merged in the title purchased at the execution sale and Passed under the purchaser's quitclaiin deed where the purchaser was allowed to pur chase and procure the sheriff's deed without paying the price to the sheriff, and where he turned over the proceeds of a subsequent sale to the judgment , creditor., Appeal from Sebastian 'Chancery Court, Fort Smith District ; C. M. Wofford, Chancellor ; affirmed. Joseph R. Brown and Cravens, Cravens ce Friednzan, for appellants. G. Boon Dolzhs., for appellees. HUMPHREYS, J. This case and the 'appeal and Cross-appeal from the decree rendered therein by the chancery court of Sebastian County, Fort Smith District, -involves the title to a certain , part of lots 5 and 6 in block 634, Neville Addition, which. property was . sold under two executions issued and : levied to , colleet two deficiency judgments in separate foreclosure proceedings in said court. In one of the foreclosure • proceedings, the Peoples Building & Loan Association waS plaintiff and I. L. Hight et . al, were' defendants: In That proceeding a deficiency judgment ,was rendered against I. L. Hight and,others. • In the other foreclosure. proceeding the Fiirf Smith Building & Loan Association was plaintiff and I. L. Hight,. H. I. Aday et al. were defendants.. In that proceeding, a deficiencY judgment •was rendered against I. L. Hight, H. I. Aday and others. . • • ,.•
416 FORT *SMITH & LOAN . I\HS'N v. HIGHT. [191 The deficiency judgment obtained by the Peoples Building & Loan Association was prior in time to that obtained by the Fort Smith Building & Loan Association and was a .Sttperior lien against .the lands Of the respective judgment_ .. debt • ors situated in said county. • The . :property .described -above• belonged to I. L. Hight at the time the • deficiency judgments were rendered against . 'him: - • . . - On April . 16, 1930, the : Fort Smith Building & Loan Association caused an- execution to be ,issued, and the sheriff levied same. upon said-property; •and on June 14, 1930, sold the-property tinder the etecutiOn to H. L'Aday for $ . 40 • 0, Who redeived • 'a sheriff's deed 'thereto NVithout paying any amount to either . the sheriff .O'r the Fort..Smith L0411 Association..- . . • • Thereafter, on September 19; 1930, the -Fort SMith Building & Loan Association 'pbrehased the deficiency judgment'-of ;the Peoples.. Building. & Loan Association from it for ,the. sum:of $472:and took a written aSsign; ment th • e . reof, which :was immediately recorded.. After the rendition of the deficiency judgments against I. L. Hight in fayor of said association and before the execution sale; he conveyed sAiibt real estate to his sister, Lucy ,WOodruff,..-who-iii turn conveyed' -same to -Wynema Hight, hiS daughter, who is-. the apPellee this :case. • •• •.• • • • - On beceinbers I1,.1930, H. L AdaY 'SOW' said' proPerty to Wynema ilight for $432 In . caSh'and • executed a . quit-claim-deed to' her • for it and'paid the•amotinthe freCeived therefor to the Fort Staith Building & Loan Association. She went into immediate possession thereof and expend:. ed $111 in repairing it and remained in possession : thereof until ousted by H. I. Aday. ; In September, 1931, the Fort Smith. Building & Loan Association, ..as assignee of the deficiency -judgment of the,Peoples Building & Loan Association, ca.used an execution to- he -issued and levied upon said property, and at the execution sale H: I. Aday became the purchaser and received a sheriff's .deed thereto.. He then tOok possession of the property and rented it until the court.in this
ARK.] FORT SMITH BLDG. .&. LOAN ASS 'N v. RIGHT. 417 proceeding quieted the title in Wynema Hight and 'decreed the possession thereof to her. - I. L. Hight brought an independent suit in said court to set aside the personal judgment of date January 9, 1929, procured against him by the Peoples Building & Loan . Association in its foreclesure suit against him and others, on •the alleged grOund that when the mortgaged property was conveyed to him by the original mortgagor, he did not assume and . agree tO pay the mortgage indebtedness. The suit of Hight was consolidated with this proceeding, and they were tried together by the chancellor. . . On the hearing of the consolidated cases, the chancery court quieted the title to the property sold under the, execution sales in appellee Wynema Hight, and dismissed Hight's complaint for the want of equity. - • An appeal has been duly prosecuted to this court by the Fort Smith Building & Loan Association and H..I. Aday, and a cross-appeal has been taken by I. L. Hight. The record reflects that I. L. Hight was personally served in the foreclosure suit brought by the Peoples Building & Loan Association, in which it was alleged that hcpurchased .the mortgaged property from the mortgagor and as a part of the consideration therefor assumed and agreed to pay the mortgage indebtedness. He failed to answer • and made default in that case. The decree in the foreclosure suit recites that the cause was heard on documentary and oral evidence. There is no evidence to show that the personal judgment against him was procured through fraud practiced by any one upon the court, so the judgment of the chancery court dismissing his complaint must be affirmed. On the other branch Of the case, after a very careful yeading of the testimony, we are unable to say that the finding of the chancellor, in effect, that, in the purchase of the property at the first executiorY-sale, H. I. Aday represented and acted for the Fort Smith Building & Loan Association, is contrary to the preponderance of the evidence. H. I. Aday was . allOwed to purchase 'and procure a sheriff's deed thereto under the first.execution without paying a penny to the sheriff or the Fort Smith
418 [191 Building &.LOan AssoCiation and without ally entry being made on the books of said association concerning the transaction. When he sold it to appellee, he immediately turned theumount he received therefor over to the Fort Smith Building & Loan Association . On its face, this looks fis. if Aday was holding the title thereto for the association, and that• the association was the eqnitable owner thereof. • The explanation of Aday and the secretary of the association is very uhsatisfactory -and not in accordance -With ordinary buSiness transactions.. The chancellor has found in effect that Aday was a trustee for the Fort Smith Building & Loan Association; and, in vieW • of all the eirchmstances , leading up ;to 'and sur-xotindhig the transaction, we do 'not regard his finding as •contrary to the 'preponderance of the evidence. This' being • true; it . follows that the deficiency judgment . lien the Fort Smith Building & Loan Association procured from the . Peoples Building & Loan -Association merged in the title it *procured at its first . execution sale and passed to appellee- uhder her quitclaim deed from Aday, the trustee or'-agent of the Fort Smith Building & Loan Association."' • • The judgment in faVor of . appellee is - therefo-re affirhied.
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.