Atkinson v. Burt

53 S.W. 404, 65 Ark. 316, 1898 Ark. LEXIS 131

Opinion

Hughes, J.,

(after stating the facts.) The first instruction is erroneous. By failing to furnish Burt, the appellee, with an itemized, verified statement of his account before bringing suit, the appellant, Atkinson, did not forfeit his debt secured by the mortgage given by the appellee, Burt, to secure its payment. The statute imposes no such forfeiture for such a failure. The statute is as follows: “Before any mortgage, trustee or other person shall proceed to foreclose any mortgage, deed of trust, or to replevy under such mortgage, deed of trust or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due. Provided if the mortgagor disposes, or attempts to dispose, of any of the property mortgaged, or absconds, or removes from the county, such statement shall not be necessary.” Sand. & H. Dig., § 5110, This might have been pleaded to a suit to foreclose, or to a suit for the possession of the property. But it could not work a forfeiture of the appellant’s mortgage, or cause the loss of the debt secured thereby.

The second instruction is erroneous, because it told the jury that, if any part of the indebtedness secured by the mortgage was usurious, the entire mortgage was void. The mortgage was made to secure future advances, as well as a note given for advances prior to its execution. They were distinct and separate debts. One might be usurious, and the other free from usury. The mortgage would stand as security for the debt unimpeachable for usury.

Footnotes

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* Riggan v. Wolf, 53 Ark. 538; Lund v. Fletcher, 39 id. 326.

The third instruction is erroneous, because by it the jury were told that, if the justice had no jurisdiction, the writ could not justify the seizure, and Atkinson’s possession was unlawful; thus ignoring Atkinson’s right to possession under his mortgage, because the manner of obtaining it was wrong. He was entitled to possession, and, though the manner of obtaining it may have been wrong, his possession itself was not unlawful. Kannady v. McCarron, 18 Ark. 166; Whittington v. Flint, 43 id. 504, 519; Jones v. Horn, 51 Ark. 29; Cocke v. Cross, 57 Ark. 87.

The fourth instruction is erroneous, because it told the jury, in effect, that the account furnished Burt by Atkinson was prima facie correct, and that the burden was on Atkinson to impeach its correctness. The merely rendering an account might be considered an admission that it was correct, to be considered by the jury for what it was worth, but it does not make prima facie proof of its correctness.'

An objection was made to the introduction of Atkinson’s mercantile books as evidence, which was overruled, but should have been sustained, because no foundation was laid for their introduction. This, however, was in favor of the appellant, and he could not complain of it. But, as the case must be reversed and remanded for errors in the instructions as above indicated, we mention this. Before allowing the entries in the book to be read, the court should have required a showing that the book was correctly kept, and that the entries therein were contemporaneous with the facts recorded. Railway Co. v. Murphy, 60 Ark. 342.

For errors in giving the instructions as above set out, the judgment is reversed and the cause is remanded for a new trial.

Note by the Reporter. It was held otherwise in Marks v. McGehee, 35 Ark. 217, 219, where the court, per Eakin, J., said: “The mortgage was a conveyance and a security, and by it a greater sum or value was attempted to be secured than was allowed by law. That, by force of the statute, made it void, and the court could not convert it into an instrument of different terms, so as to malee it stand as a surety for the sums from which the usury could he eliminated. The transaction was, as a whole thing, void in itself.”