Erdman v. Erdman

159 S.W. 201, 109 Ark. 151, 1913 Ark. LEXIS 292

• Court: Supreme Court of Arkansas
• Decided: July 14, 1913
• Status: Published

Opinion

Kirby, J.

(after stating the facts). It is not disputed that the note for $600 to Dan Lewis, and the mortgage to secure the payment thereof, executed by F. F. Erdman and his wife, are valid instruments, and the testimony shows, without contradiction, in fact, that the note secured by the mortgage was duly transferred to Nellie Erdman upon her purchase thereof, and the payment of $600 of her own funds therefor.

Certainly the great preponderance of the evidence, if not the undisputed evidence, shows it was a bona fide transaction, and, under the law, she became the owner of the note, and the mortgage by reason of the purchase of the note and its transfer to her, and had the right to foreclose it without a transfer endorsed upon the mortgage. 27 Cyc. 967; Wilson v. Biscoe, 11 Ark. 44; Biscoe v. Royston, 18 Ark. 509; Hannah v. Harrington, 18 Ark. 85; Pullen v. Ward, 60 Ark. 90.

The mortgaged property was not subject to the execution and attachment, and appellant is entitled to have it subjected to the payment of the note purchased from the mortgagee. Maxey v. Cooper, 94 Ark. 296; Buck v. Bransford, 58 Ark. 289.

The court should have rendered a decree in favor of appellant, subjecting the mortgaged property to the payment of the note secured by the mortgage, of which she was transferee-, free from the attachment lien of the interpleader, and directed the clerk of the 'court to pay the sum for which the property was sold to her to be credited upon the note.

The decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.