ARK.] CALLAWAY V. ASHBY. 929 - - CALLAWAY V. ASHBY. • • : 4-4345 OPinion delivered June 29,4936. if 'oF ia6orl—Where : defendant, in 'suit tO • close mortgage, fails to verify answer, : she assumed burden of : pro N;ing : her coniention -that she did not sign ' the note nor_ nc-. % knowledge the mortgage. : . 2. • i0MESTEAD.—Wliere, , in an action to for l e o c se . mortgage again4 . husband and wife,..the . evidence shows that the, wrfe did nit' Sign the note arid 'Mortgage; 'and kilew nothing of their existence,' no judgment ' can' he rendered : against ' her, nor is she . estopped by -• the .fact that the husband borrowed the money, since, there can be no estoppel without knowledge :of the facts. . APpeal froni Clark Chancery Court; Pr,att:P.'13acoli, Chancellor ; reYersed. JosePh Callawety, Fletche;- lItcElhannoii and Ian & for appellant*: ' — 'J. H. Lo dkad6o 'and LyPe'Brbw#, for aPpellees.. ' BAKKR, J. J; W. Calla*ay . arid wife, Nellie, have appealed from a deeree Of the Clark ChancerY Court fore-clesiiig' a 'adm 'Of 'trust CoVering Certain . real estate.'and other proPerty. ' / The' defense to this foreclosure as presented here affeets only the real estate which . the CallaWays, claim as a homestead. : ' Mrs. Callaway denies she . signed the note
930 PAT .AwAy V. As-Erp-t ; 11 00 and deed of trust and denies that she acknowledged.the execution of the deed of trust. Upon its face, the deed of trust was a conveyance to R. R: . Golden, as trustee,. for Greene •& Meador, •part- ners, both now dead, to seCure a debt of $470, dated.No-vember 19, 1928ibut kept in'full force and effect by' mar-: ginal 'notation, of a credit of $8, made within five years after the execution-Of :the instrument. • :R.*;S.• 'AshbY; plaintiff below; appellee here, was 'executorof the estate of R. H. Greene,•deceaSed. ; We forego a disenssion of the testimony •of J. W. Callaway-for two reasons. The.first is ; that a ;material part of his testimony is incompetent ;under' § 4144 of Crawford & Moses' Digest; the second is that he discredits himself by a bold avowal of the forging of his wife's signature to the note and deed of trust he delivered to his benefactors who Came to his'relief at a time of sorrow and distress and loaned him money to bury a son accidentally killed. Mrs. Nellie' CallawaY 'testified . she:did ;not sign or authorize any one to sign her name to either note or,deed of ,trust ;.she denied, all knowledge of . these instruments, although she' 'knew ;of the debt.'f She discussed.with Mr. Frank Ashby the debt, the amount' and the reason for bOiroWillg. She gave Up Or-permitted , a . keer, , ' , h p er op erty, tO, , be taken as a, Credit thereon: for; the $8. But there is no testimony that she had, any iinowledge of the existence . of the deed of trust if one of the signatures thereto was not in fact hers. - ' ;: • The . notary . public who took the acknowledgment of J. W. Callaway testified that Mrs.. Callaway waS . not at any time before im to,acknowledge the , instrument, that he did not know her, and haci . not seen her ; the certificate of acknowledgment was filled out and he had only to sign when.presented to him; that Callaway asked him to sign the name of Nellie Callaway, but that he refused. Apparently , he had no record required by law to . be kept of his acts as a notary public and testified from memory only. Two other persons , were present, when Callaway signed•or acknowledged at instrument before the notary, and they .testified Mrs. Callaway was. not ,present. It
CAI/LAWA.Y AkIBY. 931 seems fafr inferenCe to ' draw fr6m 'the 'testiniony that the notary took'hn aélinoWledgifient to Only %one instrument; at least, at . or. near the tithe this"aCknoWledgment was dated, November 19, 1928. There was Other testiniony; buti the foregeing' is the giSt 'of the material Part of the reeOrd, except that adthit-tedly genuine Signatiif,eS of Mrs. 'Callaway are quite different from those on iiote"and deed of trust. ' Had Mrs. Callaway 'veil:Wed 'her " anWer, apPellees must have failed to recover as there has been offered no word of proof to the effect that she signed either instrument. Failing to verify she assumed the hurden of proving she did not 'Sign' and acknOWledge.' Section 4114, • Crawford & Moses' Digest . See, also, same matter, § 580, Crawford's Civil Code, and cases there cited, especially Terrill v. FOWler,'. 17' Ark: . 1010; 1 (2d) 75, and Lavender v::BuhrinauLPharr Hardware Co.,177, Ark. 656; 7'S. W:''(2d) 755. We think she Vas . 's:UStained that burden Th ''tr'al court eTred in holding otherwise. This argued, hoWever, that she and her husband . borrOWed the moriey and they are.. esto*pped to .; aSsert the invalidity Of the nefe' and Iniirtgage and thither:MIS authoritieS are ,cited to ,support : this 'theory: f •The 'g est of these is Illinois Standard Mortgage Corp: '17 : ,Collino, 187 Ark.,902, 63 S. W. (2d) 342., ghis citation is typical. In that case The Young MeWs Building ,& Loan'. Association knew that the mortgage corporation believed it was receiving a first Mortgage. In the instant case the,only things, that; connect Mrs. Callaiyay with tlie .1)orrowing ,of:the money ; from Greene & ,Meador, are the ;note and,deed of trust! There is no proof; she knew:of the existence, of either. There . can bp no estoppel or ratification without knowledge:of the facts. The citations offered, are not,in point.. , • The' fact ,that . the, 160, acie 'tract of land constitutes a homestead is not . questioned. It is Within thethmits of area and value. Therefore Mrs . CallaWay could. invoke the protection of § 5542 of , Crawford & MOses' Digest as enforced in numerous cases, some of the lateSt of which
932 are: Walthall v. McArthur, 185 Ark. 437, 48 S. W. (2d) 227; Ramey v. Pyles, 182 Ark. 320, 31 S. W. (2d),533., But the deed of trust is invalid only in so far as it affects the homestead. It follows the decree should be reversed as to judgment against ill's. , Callaway, and as to.the lien against the homestead. In regard to other property, mortgage foreclosure may properly proceed. „ It is so ,ordered on remand.
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.