156 CUNNINGHAM V. FEDERAL LAND BANK OF [192 ST. LOUIS. • CUNNINGHAM V. FEDERAL . LAND BANK OF ST. LOUIS. 4-4129 Opinion delivered February 3, 1936. 1. PARTITION—AUTHORITY TO MAKE.—The heirs of a mortgagor could not mutually partition land subject to a mortgage and thereby bind the mortgagee without his consent. 2. MORTGAGES—ASSUMPTION OF MORTGAGE DEBT.—The grantee in a deed who expressly assumes to pay an outstanding mortgage debt by accepting the deed binds himself to the mortgagee or his assignee, no election or other affirmative action by the mortgagee being necessary% 3. PARTITION—FORECLOSURE SALE.—Where land subject to mortgage was partitioned fa-'•.—,n.--the leirs, a decree, in a foreclosure suit that the land be-...,..cre in separate tracts, and, if such sale produced the necessary funds to so report, but, if the sale did not produce sufficient funds to extinguish the mortgage debt, the whole tract should be offered for sale held correct. Appeal from Lawrence Chancery Court., Eastern District ; A. S. -Irby, Chancellor ; affirmed. Suit by Federal Land Bank of St. Louis against P. S. Cunningham and others. Decree for plaintiff, from which Cunningham appeals. Cunningham & Cunningham, for appellant. Guy V. Head, J. R. Crocker and L. F. Reeder, for appellee. JOHNSON, • C. J. On April 3, 1918, appellee, the Federal Land Bank of St. Louis, made a loan to C. M. and Saiah C. Smith of $2,200, payable in equal installments
.ARK.] CUNNINGHAM V. FEDERAL LAND BANK OF 157 ST. LOUIS. of $77.50 each, and, to secure the due payments thereof, the Smiths executed a mortgage upon 240 aCres of land situated in Lawrence County, Arkansas, the legal description of which is here omitted. PayMents were regnlarly made- according to the tenor alld effect of the contract up to October, 1931, when payments ceased, and this suit in foreclosure was instituted by appellee in 1934. .Sarah 0. Smith died intestate in 1932, and left surviving , as her sole and only heirs at law her husband, C. M. Smith and Wylie H., Hattie E. and Nancy J., children.. C. M—Smith, husband of Sarah C. .Smith,• died. prior to the .filing this foreclosure suit. All heirs at law and assignees of the parties were made parties defendant in the foreclosure action. Appellee, in the foreclosure proceeding, in addition to the usual allegations, alleged•;, that ' in .1923 Hattie E. and Wylie J. Smith conveyed to Nancy J. the west one-half of the southwest quarter of section , 24, -township 15, range 1 west, and that . in said . deed the - grantee . expressly assumed and agreed to . pay the Federal Land Bank mortgage debt ; that Nalley J. and Wylie H. conveyed to Hattie.E. the west one-half of , the northwest quarter of seCtion 24, township 15, range 1 west, and in said deed the grantee expressly assumed and agreed to pay the Federal Land Bank debt.; ,thai Hattie E. and Nancy J. conveyed to Wylie H. the , east one-half of the northwest quarter of section 24, township 15, range 1 west, and in . said deed the grantee ex- pressly assumed and agreed to pay the Federal Land Bank debt ; that in 1928 Hattie E. conveyed . tbe. west one-half of the northwest quarter of section 24; township 15, range 1 west to P: S. Cnnningham, and in thiS deed the grantee expressly assUmed and agreed to pay the Federal Land Bank debt. All 'necessary parties were brought before the court by summens or otherwise. P. S. Cunningham filed an answer- admitting the: execution of the mortgage and note and admittect that default had been made in paying the installments - as alleged ; . but affirmatively set forth that the conveyances *between the heirs of the original mortgagors was a Mutual partition of the mortgaged lands, and that by purchase . ,he held and possessed the tract as alleged ; he further . alleged 1
158 CUNNINGHAM V.- FEDERAL LAND BANK OF [192 . ST.. LOUIS. that the Federal Land Bank. judgment . should be restricted to a reCovery of one-third its debt, and .should.be declared a lien only a g ainst the tract held and owned by him. The . cause was submitted and tried Upon .stipulation of counsel'which established the facts as aforesaid, and in addition thereto that the conveyances .between the heirs in .. 1923 were effected for the purpose of Mutual partition, and without other consideration. The stipulation of counsel in reference* tO appellant's . liability is as followS . : "That the 'deed froth Hattie E. Pigg and Luther Pigg, her hUsband, 'to P. S. .Cunningharn was a conveyance of the part' of said land received by the said Hattie in said division, and the clause in the said deed referring' to the Mortgage indebtedness .assfimed and waS intended to include only the part Of the 'said indebtedness 'assumed by Hattie E. Pigg in the division Of the lands above referred to." The chancellor entered a decree againSt appellant • for 'one-third the 'Mortgage debt,- accrued interest' , and delinquent taxes, aggregating $886.99, and againSt other defendants and owners fOr the balanCe of the mortgage debt: It waS directed'in the decree that the whole tract of land -Would 'stand as Security for the whole mortgage debt, from which P. • S. Cunninghand alone appeals. For a reverSal of the decree appellant contends that the. Federal 'Land Bank's suit against him in, persovam upon his assumption in the conveyance of 1928 is. 'an irrevocable. election:to approve, ratify and confirm the 'mutual partition betWeen the Smith heirs,' and for this reason the chancellor .erred in holding his, tract of land . liable for the whole mortgage debt.. No authorities' are cited in support. of this novel contention, and we have been un--our. investigation to find authorities supporting it. Fundamentally, if may be said that the Smith .heirs could not muttially partition in kind the mortgaged, estate, and thereby bind the mortgagee without its consent. Consent is not asserted by appellant save that this suit was an election upon appellee's part to approve and ratify..
AR: 159 :Under : repeated opinions of this court we have 'con-. sistentlY • held that a grantee in a deed who' expressly aSsumes and agrees to 'pay an outstanding mortgage debt against the lands.coriveyed by accepting, such deed •inds , himself to the mortgagee or. his assignees for the debt. This 'right inures to the mortgagee . and his as-signees as a matter 'of law, and rib electiori • Or other affirmative action upon his' part is neCeSsary or required to establish it: See Pf eif ev v. TV . B. W orihen :Co., 189 Ark. 469, 74 S. W. (2d) 220, and, cases cited therein. It follows froni this that the appellee • Was not required' to and did not : Make an eleetion in Iitirsuing the remedies Sought. , , : • • • The chancellor decreed that the lands . 'should be offered for sale in separate tracts according to the mutual partition between the heirs; and; if such sale 'prodnced : the neceSsary , funds, to extingthSh the Mortgage' : debt fo so report for approval, but that if such sale did not produce sufficient funds to extinguish the mortgage debt that the whole tract' shbuld- be . offered and' sold irreSpe'OtiVe of the mutual partition be6Veen . the' heirs.. This was alrto which appellant was entitled wider his purchase. Felker v. Rice, 110 Ark. 70, 161 . 8..W.• 162 ; Walker Moithis, 128 Ark. 317, 194 S W . 702 . ; Wallace Ai: HammondS, 170 Ark. 952, 281 S. W. 902'; 'ElliotPv. Cravens , 182, Ark. 893; 33 S. W.- (2d) 373. - No errOr ap'pearing, the , decr : ée thirigs affirthed. •
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.