. 290 WEBB •2). ALMA CASH STORE. 1160. • WEBB v. ALMA CASH STORE. , Opinion delivered October 8, 1923. Bilis AND NOTES—ASSIGNMENT—BURDEN OF PROOF.—Under Craw-ford & Moses' Digest, § 479, an assignee , of a negotiable note is not required to prove the assignment "unless the defendant shall annex to his answer an affidavit denying such assignmeht; and alleging that he verily believes that one or more , of the assignments on such instrument was forged." 2. Bums AND NOTES—ASSIGNMENT — RIG HT TO quEsTION. = -Where the proof showed that a promissory .note payable to a bank was assigned in due form by the _cashier of the bank, and the bank did not ,complain of any . lack . of authority on the part of its cashier to , make such asignment, 'the makers of the note are 'in no attitude to question sUch authority. • 3. APPEAL AND ERROR—CONCLUSIVENESS OF CHANCELLOR'S FINDING.— A finding of the chancellor not 'against the preponderancet of the testimony will be sustained by the :Supreme Court on appeal. ; APpeal froni Crawford Chancery Court; J. V.-Bonr: land, Chancellor ; affirmed. , J. E. London and E. D..Clia.st4in; for appellant. will,not be presnmed, it may be.proVed by, circumstanCes. 119 Ark..578; 46 Am: St. ReP. 753; 57 , Am. St..Rep. 591; 31 Am. St. Rep. 122; 12 'Am: 8t. ReP. 29. SectiOn 7404,•C. ez'M. Digest, was not dOmPlied with. A . sale under a mortgage withOut comPlying With the statute„,is ,Void. 84, Ark. 298; 79 Ark.). ; 2 , 19 s.'-w. colluSion , between ,Alexander,,audipetree 41 . d . the transaction , void ; 128 , A , rk. 60 , 5; 97 , Ark. , 15 ; 99 Ark. 438; 81 Ark. 134; AO. Ark. 144. Starkird;-4 , • Where the evidence iS conflicting, the chancellor's finding will not be disturbed. 112 Ark. 337; 101 Ark. 493; 81 Ark. 68. His findings are as conclusive as the verdict of a jury. 74 Ark. 336; 85 Ark. 414; 91 Ark. 292; 107 Ark. 368. McCuLLocH, C. J. Appellee, a domestic corporation doing business at the town of Alma, in Crawford County, instituted this action in the chancery court of that county against appellants, Henry Webb, Arthur Webb and Wal-
Alkkj] WEBB' : v. ALMA CASH . &ORE. lace Webb, to recover on a note executed bY appellantk' to appellee in the sum of $893, dated April 4', 1921;and to' foreclose a mortgage on personal property, eXeCuted by appellants to appellee on the saine date tO seCtiretlie '114- ment of said note; also to recover frein:appellantlienry Webb on a nete in the 'sum of $1:10.26 and mortgage on the same personalty to secure the Saine,''OXeChfed by Henry Webb to -the Bank of Alma; 'a bankingteer'Poration, and aSsigned by the Bank of Alma to . aPpellce. ' ') Appellants ' aris*ered, denyint gill'at'the executed the note tb appellee, or the Mortgage 'Sdc l uring 'the' same, as alleged in the C : omplaint, and denying ' that 'they were indebted to t-appellee in any slim WhateVer.' 'ApPellant Henry WebkadMitted the eXecution of the note and: mortgage tothe Bank of 'Alma,,but . denied that the sarne;had been ,assigneCT to , apPellee, andMso alleged that the note had been paid' , The cause was heard ,on the pleadingsand,the testimony, of witnesses, ; and the Cpprt foundrin , favor of ap-pelf0 as to the : execution ,of , the; note , ,and mortgage and the, assignment, of One ,of the notes to,appellee,and referred the : cause to.a master , to, state .anaccount,between the,parties, after giving credit fo r .c e r,t ai P.P a lq§ 0.cotton delivered-by appellants -to ap,pellee.,. Th , e , „IncIstpy , , ,mn de a,report ; stating the acconnt,,after : hearing ' further ; testimony: on the subject, , and the ; coUrt overruled.,excep ti on s, and rendered l a final , decree in.fayor of, appellea,fpr the amount found due, and ordered t a, sale of,,the mortgaged property by„the receiver ap,pointed ;, in, the On the first question raised,teoncerning-the valldity of the alleged assignment of one of the notes by the Bank of Alma, it is sufficient to say that appellant has not complied with the statute (Crawford Moses' Digest, § 479), which provides that, in a suit brought by an assignee of an instrument made assignable by law, the plaintiff ",shall not be required to prove said assignthent, unless the defendant shall annex to his answer an affidavit denying such assignment, and alleging that he verily be-
292 WEBB V. ALMA CASH- STORE. [160 Heves , that one- or more of the assigmnents on such,instrument was forged." In addition to the failure to comply with this statute so as to require proof of the validity of the assignment, it was proved in the present case that the , instruments which were filed in the action bearing the assignment of the Bank of Alma in due form were assigned to appellee by the cashier of the bank for a valuable consideration, being the face'value of the debt less fifteen per cent. discount, and that the cashier accounted to the bank for the loss sustained on the discount. The bank did not complain of any lack of authority on the part of its cashier to make the assignment, and appellants are in no attitude to raise that question: „ A decision of the case in other respects turns solely upon the question of. the weight of the evidence, which is conflicting between the appellants themselves, on the one side, and the- manager of appellee's 'business, the cashier of the Bank of Alma, and several employees of appellee, on the other side. Each of the appellants testified that they did not sign •the note or the mortgage alleged to have been executed to appellee on April 4, 1921, but the manager of appellee's business, and' the cashier of the Bank of Alma, who was a notary public and took the acknowledgments, testified that the Mortgage was in fact executed and acknowledged. The testimony does not appear to preponderate against the finding of the , Chancellor—in fact, the prepOnderance of the evidence on the issues involved supports the finding of the chancellor. The same inay be said with respect to the issue as to the amount of the balance due on the note. The decree is therefore 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.