{
  "id": 6139883,
  "name": "AMSTAR/First Capital, Ltd. v. Robert S. McQUADE, Roddy, J. McCaskill and Martha S. McCaskill",
  "name_abbreviation": "Amstar/First Capital, Ltd. v. McQuade",
  "decision_date": "1993-06-30",
  "docket_number": "CA 92-1373",
  "first_page": "185",
  "last_page": "187",
  "citations": [
    {
      "type": "official",
      "cite": "42 Ark. App. 185"
    },
    {
      "type": "parallel",
      "cite": "856 S.W.2d 326"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "29 Ark. 591",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1882957
      ],
      "year": 1874,
      "opinion_index": 0,
      "case_paths": [
        "/ark/29/0591-01"
      ]
    },
    {
      "cite": "43 Ark. 504",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1894503
      ],
      "year": 1884,
      "opinion_index": 0,
      "case_paths": [
        "/ark/43/0504-01"
      ]
    },
    {
      "cite": "282 S.W. 995",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1926,
      "opinion_index": 0
    },
    {
      "cite": "170 Ark. 1146",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1371570
      ],
      "year": 1926,
      "opinion_index": 0,
      "case_paths": [
        "/ark/170/1146-01"
      ]
    },
    {
      "cite": "278 S.W. 634",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1926,
      "opinion_index": 0
    },
    {
      "cite": "170 Ark. 65",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1371576
      ],
      "year": 1926,
      "pin_cites": [
        {
          "page": "68"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/170/0065-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 305,
    "char_count": 3840,
    "ocr_confidence": 0.921,
    "pagerank": {
      "raw": 1.6553140753893307e-07,
      "percentile": 0.6934402353187387
    },
    "sha256": "c3ca08ae49a229a767fb53fb58072769ec7b8a4a86ea6ac5e70872380cc1da24",
    "simhash": "1:2fa247f796425de6",
    "word_count": 644
  },
  "last_updated": "2023-07-14T21:37:01.057819+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Cooper and Rogers, JJ., agree."
    ],
    "parties": [
      "AMSTAR/First Capital, Ltd. v. Robert S. McQUADE, Roddy, J. McCaskill and Martha S. McCaskill"
    ],
    "opinions": [
      {
        "text": "John E. Jennings, Chief Judge.\nThis is a mortgage foreclosure case. The sole issue presented is whether a certain view easement takes priority over a prior recorded mortgage. The chancellor held that it did, but we cannot agree and therefore reverse.\nIn March of 1988, Big \u201cK\u201d Development Corporation borrowed $1.2 million from First Federal Savings of Arkansas for the purpose of establishing a residential development in West Little Rock. A mortgage to secure the indebtedness was filed on March 21, 1988.\nIn August of 1988, Big \u201cK\u201d deeded Lot 40 of the development to Roddy J. and Martha McCaskill. The deed was recorded on August 16,1988, and contained an easement \u201cfor the purpose of providing an unrestricted view from said Lot 40.\u201d The view easement encumbered Lots 21, 22, and 23.\nWhen the McCaskills prepared to build a house, they sought and obtained a partial release of the mortgage from First Federal. The release made no mention of the view easement. First Federal subsequently went into receivership and appellant, Amstar/First Capital, Ltd., purchased its assets from the receiver, Resolution Trust Corporation. Big \u201cK\u201d defaulted on the note, and Amstar brought the present action to foreclose the mortgage.\nThe chancellor expressly found that First Federal had no actual knowledge of the view easement in McCaskill\u2019s deed at the time it gave the partial release. The court did find, however, that First Federal had constructive notice of the view easement from the time of the recording of the deed, that the view easement was valid, and that the appellant\u2019s mortgage was subject to it. While we agree with the finding that the easement was valid we do not agree that it is entitled to priority over the prior recorded mortgage of the appellant.\nIt has long been the law in this State that nothing can be done by the mortgagor, subsequent to the execution of a valid mortgage, which can impair the rights of the mortgagee. Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 68, 278 S.W. 634 (1926). The mortgagor can make no contract respecting the mortgaged property which would bind the mortgagee or prejudice his rights. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W. 995 (1926). \u201cUnder this rule, it is beyond the power of the mortgagor to disturb the priority of the mortgage after its execution. Accordingly, dealings of the mortgagor with a third person, subsequent to the execution of the mortgage, cannot affect prejudicially the rights of the mortgagee.\u201d 55 Am. Jur. 2d Mortgages \u00a7 323 (1971). See also Whittington v. Flint, 43 Ark. 504 (1884). Furthermore, a mortgagee, after having his deed recorded, it is not required to search the record from time to time to see whether other encumbrances have been put upon the land. Birnie v. Main, 29 Ark. 591 (1874).\nThe appellees contend that appellant\u2019s claim that its mortgage takes priority over the view easement is barred by acquiescence, waiver, laches, or estoppel and also rely on the maxim \u201che who seeks equity must do equity.\u201d The chancellor apparently did not base his holding on any of these grounds, and on our de novo review, we can find no basis in the record for doing so.\nOur conclusion is that the appellant\u2019s mortgage was entitled to priority as a matter of law and we therefore reverse and remand the case to the trial court for the entry of a decree consistent with this opinion.\nReversed and Remanded.\nCooper and Rogers, JJ., agree.",
        "type": "majority",
        "author": "John E. Jennings, Chief Judge."
      }
    ],
    "attorneys": [
      "Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: John E. Pruniski and Dorcy Kyle Corbin, for appellant.",
      "Barber, McCaskill, Amsler, Jones & Hale, P. A., by: Austin McCaskill, for appellee."
    ],
    "corrections": "",
    "head_matter": "AMSTAR/First Capital, Ltd. v. Robert S. McQUADE, Roddy, J. McCaskill and Martha S. McCaskill\nCA 92-1373\n856 S.W.2d 326\nCourt of Appeals of Arkansas Division I\nOpinion delivered June 30, 1993\nHilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: John E. Pruniski and Dorcy Kyle Corbin, for appellant.\nBarber, McCaskill, Amsler, Jones & Hale, P. A., by: Austin McCaskill, for appellee."
  },
  "file_name": "0185-01",
  "first_page_order": 209,
  "last_page_order": 211
}