ARK.] TANNER V. MANOS. 293 TANNER V. MANOS. Opinion delivered October 8, 1923. 1. REFORMATION OF INSTRUMENTS—EVIDENCE.—It is not essential in order to entitle one to reformation of a deed as against a subsequent purchaser of the land to prove any formal notice to the latter; it being sufficient to show circumstances which put the purchaser upon inquiry. 2. REFORMATION OF INSTRUMENTS—AGAINST WHOM ENFORCED.—Where a debtor and his wife executed a mortgage of his own homestead which correctly described the land intended to be conveyed, and thereafter conveyed the land to his wife, who subsequently executed a conveyance to a. third person, since the wife had no further interest in the land, the mortgage may be reformed as to the subsequent purchaser, so as to describe the land properly. Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor; affirmed. Rice & Rice, for appellant. A mortgage is good between the parties, though not acknowledged or recorded. 71 Ark. 517. An unrecorded mortgage is not void or ineffectual as a lien between the parties. 68 Ark. 162. The chancery court cannot reform the deed of a married woman. 53 Ark. 55. A married woman cannot relinquish her dower save in the manner prescribed by statute. 104 Ark. 226; 148 S. W. 257. C. A. Fuller, for appellee. Where a mortgage by mistake incorrectly describes land intended to be conveyed, the mortgagee is entitled to a reformation thereof as against the mortgagor, or any subsequent purchaser with notice of such mistake. Section 5578, C. & M. Digest; 89 Ark. 259; 87 Ark. 371; 104 Ark. 226; 72 Ark. 534. A married woman's conveyance . can be reformed. 72 Ark. 534. MCCULLOCH, C. J. This action was instituted by appellee in the chancery court of Benton County, seeking reformation of a mortgage on real estate in that county so as to correctly describe the land which it is alleged was intended to be conveyed.
294 TANNER V. MANOS: [ipo R. D. Hogan, who was one of ,the defendants below, but who has not appealed from the decree, was the owner of the land . in controversy, and : executed 'a mortgage thereon to . appellee to secure a debt_in the sum of $800 for borrowed money. Hogan's wife, Lillie, joined in.the conveyance for the purpose of' relinquishingTher homestead and dower rights. The land in controversy _contained, sixty ;acres, ,and,, is properly described as the east half of, the northwest quarter of the northeast quarter, and -the southwest quarter of the northeast quarter of sectiOn twenty-fmit, township twenty north, range thirtY-fonr we'st, in -.Benton County. It will be noted' that _ of the two„contiguous tracts in this description, one is a twenty-acre tract and the other a forty-acre . tract..':The mortgage','coriectly described the tract containing , twenty other tract in the mortgage was described, as . the Southwest quarter of the northwest quarter of the northeast quarter of said section twenty-four, which contains_only; ten acres and is , in a different subdivision from:that whick Hogan oWned. The mortgage recites,,however,:that the, two tracts contain , sixty acres, but, accordi]g to, the, description of the two tracts in the mortgage, they .really, contain only thirty acres., The mortgage.was duly placed, of record. . After the execution of the, mortgage i , ,Hogan ,and wife separated and, were divorcel,, and he , conyeyed the land to his wife, who subsequently, sold ande,o,uveyed,tp7 appellant, B. , F. Tanner and wife, , who were joined; as; defendants in this suit. It is alleged in the complaint, and has been proved by a preponderance of the evidence, that the land in con-, troversy was the same land owned . by ,Hogan, and. wife; who, at the , time the mortgage was executed, Were in actual occupancy of the land as their homestead; and.hact, so occupied it for a great many years, and that , tit had= been thus occupied by Hogan's. father. ,It was,_also leged that appellants were informed as to, the mortgage.
AkIL] TANNER V. MANOS. 295 ori the land at the time they purchased it and received a convekarice , from Lillie-Hogan. Neither Hogan nor his wife made any defense, : as they had parted with the title, andohad nwfurther -interest in -the land. - ansNiier; 46riying all the allega-fibiA 'of the' COMplaint With'respect to the 'alleged Mistake in i the'e*eChtiOn Of the 'Mortgage,' 'and asSerted that, if thereiiras a mistake, apioellantS'Were innOcent j5urchasers foralue; and had nO information aS to the fact that there had been a r ini§take'in thedeScriptibn tot that the land in ddhfrovew'd 'intended to be 'described. 'it'vi r aS also alleged that'llie tWenty-adre 'tract described in 'the Mort-gageVas not owned by either Hogan 6r hi's wife, bnt that as'. oWned by 'a Mah = namedWilSon, from'cVhom appellant had . receiVed a . deed Of cOnveYance.' , On the final l hearing of the . canse,. on- oral and documentary , evidence, the court fOurid the 'facts in favor of appellee; and granted the Tend praYed . for 'by reforming the. niortgage t and ordering it forecloSed.. • It is 'contended; in the firSt place; "that the deCree was errOriebuS 'as to the twentY-aere tract for the' reason that' appellee failed.to ptcme, as' ulleged,-that the Hogans Were q he,owners nf that tractH We are of the opinion that .therproof shows . overwhelmingly- that Hogan was the oviner of this tract, and that ihe -arid-his wife had been inlactual occupancy forlaigreat many yearslong enough tb . cOnstitute inVestiture.of title by. liinitation. It is true that there was a . break iri , the. record title, -which showed , that,;the: -title :had beeii in i, Wilionbut there is scarcely any dispute in the- facts which Sestablished the title of Hogan ,by adverse pOsSession. for the statutory , period' of- limitation.. ' . , ", 'There is a great volume bf r testimOny On the •pestion as to the information of uppellant doncernifig the Mistake in;theidescription of ' the land in' thrtgage. L It i . necessary to discuss the-testiiiiOny in detail,' Tor . we' are clearly , of the opinion that it suStains' the finding . cif the chancellor that ap Pellant , I31 , F: 4 Tantier was 'd'dViSedi when'
296 TANNER v. MANOS. [160 he bought the land, that appellee held a mortgage on it for $800. The information was sufficient to put him on notice as to the error in the description. The land was the homestead of the Hogans, actually occupied by them, and was the only land they owned. The testimony of numerous witnesses is to the effect that appellant Tanner was present at a certain trial between appellee and Mrs. Hogan, where testimony was drawn out to the effect that appellee held a mortgage on this land for $800. There is other testimony tending to show that appellant Tanner received other information on this subject, and that he knew, when he bought the land, that there was a mortgage on it. According to the undisputed evidence, he bought the land at a grossly inadequate price—he paid $400 for it, whereas the lowest estimate of value is $2,000. It is not essential, in order to entitle appellee to .a reformation of the deed, to prove any formal notice to appellants that a mistake had been made in the preparation of the mortgage. It is, as before stated, sufficient to show circumstances which put them upon inquiry. The evidence is, we think, abundant for that purpose. Finally, it is contended that there can be no refoi-mation for the reason that the land was the homestead at the time the mortgage was executed. The contention is, in other words, that there can be no reformation of the instrument because a married woman was a party to it. The land was the homestead of R. D. Hogan, but the fact that his wife had . to join him in the execution of the conveyance in order to make it valid does not prevent a court of equity from reforming the instrument so as to correct a mutual mistake of the parties to it. Sledge & Norfieet Co. v. Craig, 87 Ark. 371. We held in Morris v. Covey, 104 Ark. 226, that this-rule does not apply to a reformation of a married woman's relinquishment of dower, and that a court of equity will not grant any such. relief. Appellants are not; however, as purchasers of the land from Lillie Hogan, in an attitude to resist the reformation of the deed by the correction of the mutual
ARK.] 297 mistake. Even if the Hogans had not parted with the title, appellee would be entitled to a reformation as against R. D. Hogan, and the relief would fail only as to the wife's relinquishment of dower. Since the exeou-tion of the mortgage, Lillie Hogan's dower interest was merged into the legal title by the conveyance to her from her husband, and she then parted.with the title by a conveyance to appellants. The dower interest has thereby been extinguished and is no longer an element of the controversy. In other words, it is not essential to the relief granted to appellee that there should be a reformation of the relinquishment of dower, which has, as before stated, been entirely extinguished. The case in that respect stands as if there had never been any dower interest. Our conclusion is therefore that the decree of the chancellor is correct in all respects, and the same is 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.