American Freehold Land Mortgage Co. v. McManus

58 S.W. 250, 68 Ark. 263, 1900 Ark. LEXIS 66

Opinion

Wood, J.,

(after stating the facts.) The object of plaintiff’s complaint was to cancel a deed of trust, which she claims was a cloud upou her title. She makes the deed of trust an exhibit to her complaint. A deed made an exhibit and referred to in a complaint in equity, and thereby made part of the record, would control the averments of the complaint. Buckner v. Davis, 29 Ark. 444; Beavers v. Baucum, 33 Ark. 722. Here the deed of trust exhibited with plaintiff’s complaint contains an express covenant to pay the debt of appellants, exactly similar to that contained in the deed of trust passed on by this court in New England Mortgage Security Co. v. Reding, 65 Ark. 489, where we held that, the mortgage being under seal, and containing a promise to pay the debt, the right of action upon it was ten years. The averment in plaintiff’s bill that “said trust deed is barred by the statute of limitations” was controlled by the stipulations and recitals in the trust deed itself, which showed such averment to be untrue. The court therefore erred in rendering a decree pro confesso cancelling the deed of trust. The decree was. not based upon a complaint which showed a good cause of action. It was therefore erroneous. Chaffin v. McFadden, 41 Ark, 42; Benton v. Holliday, 44 Ark. 6.

The judgment is reversed, and the complaint is dismissed for want of equity.