834 FIRST NATIONAL BANK OF CORNING V. WELLS [179 RIVER . SAVINGS BANK. FIRST NATIONAL BANK OF CORNING V. WELLS RIVER SAVINGS BANK. Opinion delivered Jime 24, 1929. 1. DRAINS—NATURE OF PLEDGE OF.BLIILRMENTs. —A pledge of better-ments, made by a drainage district, as authorized by a special act of 1907 (Acts 1907, p. 890) to secure the payment of a bond issue, was in the nature of a first mortgage lien, inuring to the . berrafit and protection of bondholders. 2. APPEAL AND ERROR — FORMER DECISION AS CONTROLLING.—The former decis:an of the Supreme Court on appeal from a decree in a suit to foreclose a second mortgage of a tract of land in a drainage district, that a bank intervening therein acquired no right of subrogation to the lien of the drainage district by reason of having paid taxes an such lands, held controlling on an appeal in a suit to foreclose the first mortgage on the same land, wherein the bank was made a party, and filed an answer setting up practically the same claim. Appeal from Clay Chancery Court, Western District ; J. M. Kulrell, Chancellor ; affirmed.
ARK.] FIRST NATIONAL BANK OF CORNING V. WELLS 835
RIVER SAVINGS BANK. F. G. Taylor, for appellant. John L. Bledsoe, for appellee. SMITH, J. The Western Clay Drainage District wds created by- a special act of the 1907 General Assembly, and, pursuant thereto, assessments of benefits were made and the roll thereof was filed, as provided by the .act, with the recorder of deeds of . Clay County, on December 24, 1912. A pledge of the betterments was made as authorized by the act to secure the payment of a bond issue by the improvement district, and, as was said in the case of Hopson v. Oliver, 174 Ark. 659, 298 S. W. 489, the pledge was in the nature of a first Mortgage lien inuring to the benefit and protection of the holders of . the bonds of the improvement district. G. W. Transue owned a tract of land in the improvement district, upon which he obtained a loan on February 8, 1923, from the New England Securities Company. This loan was evidenced and secured by two deeds of trust. The first was executed to T. C. Alexander, trustee, to secure the principal loan, and the other, which was made junior to the first, waa given to secure the commission of the agent in negotiating the loan, and it was also executed to Alexander as- trustee. Default was made in the payment of the indebtedness secured by the second deed of trust, and suit was brought to fore:lose. it. The First National Bank of Corning intervened in this suit, and was made a party to it. The bank alleged that it had paid the drainage taxeS on the land for the years 1924 and 1925, and had also paid the State and county taxes in 1925 for the year 1924, amounting to $21.38, and it was prayed that it be a.djudged and decreed that the bank, by paying these taxes, had -acquired the right to be subrogated to the prior lien of the improvement district to the extent of the taxes Paid, and also that the bank be decreed a lien, under § 10053, C. & M. Digest, for the State and county taxes. The chancellor denied the relief prayed, except that a lien was decreed for the amount of the State and county
836 FIRSTN:ATION4L BANK OF CORNING V. WELLS [179 RWER SAVINGS:BANK: taxes, and there was an appeal and : cross-appeal from that decree. . • Upon the appeal, we held that the court.had properly refuSed to grant the bank relief by subrogation, but it was held on the . cross : appeal that the court had erroneously deereed the . bank a lien for the amount . of the State and 6ountY . taXes , paid : by it. The oPinion is - found reported imder the style of Firsi National Bank v. New England SeOtirities Co , .; 17 . 6 Ark.:1181, .6 S. W. (2d) 12, where the facts Out of whieh the litigation arose are fully stated and th. ureasons for the decision iigiyen. The first. deed ' of trusf above referred to was duly assigned bY the . NeW England Securities 'Company to the Wells* River Savings Bank, and; default having been made in . the : payment of the indebtednesS there secured,. this Suit Was . brought' to foreclose that 'deed of trust. The Pit4 . 1\T-itiohal . Bank waS Made a party to thiS suit, under the 'allegatibii that it had some -claim to the land adverse Wale own ter-of the deed Of trust,. and the bank filed an answer - iii which it set up practically - the same claim to the' righf : of 'Subrogation Whiel y it had attenapted to d§sert hi' ifs intervention filed upOn the:foreclosure of the . ' see-6nddeed 6f trust. There are smile differences in the fadts, but these differences are not uf icontrotling importance. It. appears therefore that we are "virtually asked to try ag'aiffa ltioAion-deCided : 6n the former appeal; but, as we are -ConVinCed of We . c0freaness Of the 'decision in that CaS'e, W'e adhere-to it, and it . i s con t r l o l in . g here. ThechancellOr , denied : th , e right of subrogation aS pil ayed, and; as that . decree accordS with the • view expreSsed on . the former apPeal, 'it must be . . affirmed; and it o ordered. •
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