550 ASHBY v. SHOPTAW. [192 ASHBY v. SHOPTAW. 4-4255 Opinion delivered April 6, 1936. 1. JUSTICES OF THE PEACE.—Where the officer's jurat was omitted from the affidavit for appeal from justke court to the circuit court, it could be attached on the morning of the trial in the circuit court, since this was a curable defect. 2. CHA'rrhu, MORTGAGES.—One who executes a note and mortgage to secure payment of debt, and subsequently makes a payment on the note and executes two mortgages including other property as security, is, when suit is brought to enforce payment, estopped to deny that note and mortgage were to be binding because
ARK. ASHBY V. • SHOPTAW,. 561 , there had been . no settlement of accounts between :him and the . firm of which payee was a .partner in accordance with an agree-inent rnade. at time note and mortgage were executed. - Appeal from Jefferson Circuit Court; T. G.,Parharn, Judge; reversed. .• • • • J. II.,Lookadoo and ,Lyle Brown, for appellant. Rowell, Rowell (6 Dickey, for appellee. HUMPHREYS, J. This suit :was brought by appellant against appellee in a magistrate "s court in Jefferson County on a note of date April 16, 1931, payable October 1st , of the ,same year, for .$70. and, interest, executed by appellee to,R.H.. Greene as surviving partner of the firm - of R. H. Greene & John B. Meadows, and for the possession of. certain personal. property .pledged .for the payment of . same, by deed.of trust of even date .with the note. In. December of that year, ,appellee paid $7.50 on the .note, and gaye a new deed of trust with additional security to secure the payment thereof in the fall ,of 1932. When,this . second deed of trust became due, he gave another. deed of till* . in January, 1933, with additional security, to . secure..the payment thereof ,in the fall of 1933. In the summer of that.year, B. H. Greene, the surviving partner of. ,the firm of, Greene &.Meadows, died, and appellant .herein, R. S. Ashby, was appointed exe- cutor. in succession to Greene.: The note sued upon was assigned by , the estate of Meadows to the estate of Greene. .The pleadings, in addition to the note ., filed before the magistrate consisted of an affidavit and a bond by. the executor of the estate of R. H. Greene,. deceased. The order for the delivery of the property described in the deed of trust and a simmions. was- issued out of the magistrate's court on April 1, 1935, and made returnable on. May 6, '1935. . At that . time, : a judgment was rendered' by the magistrate for the :return of the property and for $75.21 in favor of appellee on his counterclaim, from which an appeal was prayed:to the .circuit court of said county. An affidavit for appeal was filed , and sworn to i but the officer omitted to attach his jurat. The circuit court permitted appellant to-amend the :affidavit by attaching a jurat on the morning of the trial, over the objection,and exception of appellee. . After the note a,nd
559 ASHBY v. SHOPTAW. [192 mortgage had been introduced by appellant, the appel-lee sought to introduce oral evidence, and was permitted to do so over the objection and exception of appellant, to show that at- the time appellee executed the note and first mortgage, he did it with the understanding that it should not be binding upon him until there should be a settlement of accounts between him and the firnT of Greene & Meadows, which accounts grew out of transactions between him and the.firm since 1926, and that no settle.- ment was ever made pursuant to the oral • agreement; and that, according to an adjustment of the account, appellant was indebted to him in the sum of $2.77. At the conclusion of the testimony; appellant requested the court to instruct a verdict for him in the amount due upon the note, -amounting to $93.29, which the court refused to do, over appellant's . objection and : -exception. The court then overruled appellee's motion to:,dismiSS the appeal from the magistrate's court because . no jurat was attached to the affidavit for : appellant, Over his objection and exception, and submitted the issues . : to the jury of whether the notd was to • becOine binding upon appellee until there was a Settlement of accounts between him and the firm of Greene' & Meadows, and• if such an agreement •was made, whether appellee ratified the note by making a payment on it, and the execution of later-. chattel mortgages to secure' same;• and instructing them to find for appellee 'the sum that might , be due him, if any, on a settlement of accounts in case they should find the note was not to be binding until such settlenient was- completed, if they should find : that- apPellee. had not: waived the settlement by making a payment on the note and executing the subsequent chattel. mortgages. • The jury returned a verdict for appellee, and, from the verdict and consequent judgment Tendered •thereon, the cause is here on appeal and cross-appeal. • The sufficiency of the affidavit for appellant from the magistrate 'S to the circuit court is the first question arising 'for • determination by this court. The affidavit was signed and- sworn to, the only defect being ihe omission Of the jurat by the notary public who : administered the oath to the affiant. This court said in the
ARK.] ASHBY v. SHOPTAW. 563 case of .Coleman v. Franenthal ce Co., 46 Ark. 302: "When the objection was made in the circuit court, the party prosecuting the appeal from the justice of the peace offered and was allowed to swear to the statements of the affidavit before another officer. There is no doubt , of the power of the circuit court to permitan amendMent of an informal affidavit .for appeal. * Young v. King, 33 Ark. 745: We have heldthat the omission from the jurat of the signature of the officer was a curable defect (Guy, McClelland cf Co. v. Walker, 35 Ark. 212), and we think the court, in permitting the amendment now complained of,.acted within the principle of that case,.and in.furtherance of the plain purpose of the liberal provision of the statufe aS to amendmehts.." • " , This, rule, has been approved and followed in the fol7 lowing cases : Railway Compwqy v. Decline, .60 Ark. 524, 31 S. W. 42; Kull v. Dierks Lbr. Coal'Co., 173 Ark. 445, 292*S. W: 695 ; GeOrgia State Savings Association v. Marrs, 178 Ark. 18, 9 S. W. (2d) 786. The instant case comes within the rule announced in the cases cited and is governed by them. The next nnd controlling question arising on this appeal, is whether appellee estopped himself from pleading at , this . late date a condition precedent to the binding effect, of the uote. We are of opinion that by making a payment on the note and executing new chattel . mortgages in 1932 and . 1933 to secure , the note,.appellee.clearly estopped. himself from denying the obligation in 1_936 when collection was attempted. Recognition of . the validity Of the notè 'hk a'paymefil nie -i-eon, and the -eiecu.- lion of two renewal mortgages . containing additional property to secure the note is diametrically Opposed to the position assumed by . him when pressed for collection.. One cannot brow hot and cold.. Appellee was bound by. his continued condUct:recognizing the validity of the note, and cannot be heard to say it had no . binding effect. ,The trial court should have instructed a verdict for appellant for the amount due on the note, and the judg-mentis reversed with instructions to.'render a judgment in . favor of appellant thereon.
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.