{ "id": 1537573, "name": "Western Tie & Timber Company v. Campbell", "name_abbreviation": "Western Tie & Timber Co. v. Campbell", "decision_date": "1914-07-06", "docket_number": "", "first_page": "570", "last_page": "576", "citations": [ { "type": "official", "cite": "113 Ark. 570" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "93 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546876 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/93/0042-01" ] }, { "cite": "32 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877083 ], "opinion_index": -1, "case_paths": [ "/ark/32/0258-01" ] }, { "cite": "55 la. 245", "category": "reporters:state", "reporter": "Iowa", "opinion_index": -1 }, { "cite": "92 Ga. 746", "category": "reporters:state", "reporter": "Ga.", "opinion_index": -1 }, { "cite": "50 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "35 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873826 ], "opinion_index": -1, "case_paths": [ "/ark/35/0445-01" ] }, { "cite": "68 Ark. 162", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334069 ], "opinion_index": 0, "case_paths": [ "/ark/68/0162-01" ] }, { "cite": "9 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727024 ], "opinion_index": 0, "case_paths": [ "/ark/9/0112-01" ] }, { "cite": "50 Ark. 108", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720589 ], "opinion_index": 0, "case_paths": [ "/ark/50/0108-01" ] }, { "cite": "13 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727903 ], "opinion_index": 0, "case_paths": [ "/ark/13/0074-01" ] }, { "cite": "5 Ark. 168", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726689 ], "opinion_index": 0, "case_paths": [ "/ark/5/0168-01" ] }, { "cite": "94 Ga. 175", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 374020 ], "opinion_index": 0, "case_paths": [ "/ga/94/0175-01" ] }, { "cite": "120 Ill. 308", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5384292 ], "opinion_index": 0, "case_paths": [ "/ill/120/0308-01" ] }, { "cite": "94 Mo. 346", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1021750 ], "opinion_index": 0, "case_paths": [ "/mo/94/0346-01" ] }, { "cite": "85 F. C. 466", "category": "reporters:federal", "reporter": "F. Cas.", "opinion_index": 0 }, { "cite": "32 N. J. Eq. 664", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 743314 ], "opinion_index": 0, "case_paths": [ "/nj-eq/32/0664-01" ] }, { "cite": "55 Ia. 244", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2316004 ], "opinion_index": 0, "case_paths": [ "/iowa/55/0244-01" ] } ], "analysis": { "cardinality": 530, "char_count": 11504, "ocr_confidence": 0.496, "pagerank": { "raw": 4.4795242474004177e-07, "percentile": 0.9223026130094844 }, "sha256": "c2e1bc45641b85aa159551e3c136ffa92a6c3469bbaaaa43c0531b4bb5888efa", "simhash": "1:6376ed6c88d3c6bc", "word_count": 2001 }, "last_updated": "2023-07-14T15:15:31.349152+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Western Tie & Timber Company v. Campbell." ], "opinions": [ { "text": "McCulloch, C. J.\nThis controversy involves the title to a tract of land in Jackson County, Arkansas, both parties to the suit claiming title from a common source, appellant claiming under a mortgage executed by one Thomas, and appellees claiming under a sale upon execution issued against the property of Thomas.\nThe question in the case relates to the priority of the respective liens.\nOn February 11, 1904, the grand jury of Jackson County returned an indictment against Thomas for misdemeanor, and he was arrested on a bench warrant in July of the same year.\nAfter the return of the indictment against Thomas, some time during the month of February, 1904, the precise date not being shown, he negotiated the purchase of the tract of land in controversy from one Mustin, who was then the owner. The purchase price was to be $350, and Thomas borrowed $250 to complete the purchase, having only $100 of his own to pay on the land, and he executed the mortgage upon which appellant rests its claim of title to secure the amount so borrowed, which was used in paying the purchase price. The mortgage was dated February 26, 1904, and the deed from Mustin to Thomas bears date February 29, 1904, but the proof shows that the two transactions were simultaneous.\nThe mortgage was not recorded, however, until November 4, 1904.\nOn January 30, 1905, Thomas entered a plea of guilty, a fine of $50 was assessed against him, and judgment was rendered in favor of the State for the recovery of said fine and the costs of prosecution. In October, 1905, execution was issued on the judgment,.the land was sold, and appellees became the purchasers.\nSubsequently appellant purchased the notes secured by the mortgage executed by Thomas, and foreclosed the mortgage and became the purchaser at the sale.\nIt is quite well settled by the authorities that a mortgage, given at the time of the purchase of real estate to secure the payment of purchase money, whether given to the vendor or to a third person, who, as a part of the same transaction, advances the purchase money, has pref\u25a0erence over all judgments and other liens against the mortgagor.\n\u201cA purchase-money mortgage may,\u201d says Mr. Jones, \u201cbe made to a third person who advances the purchase-money at the time the purchaser receives his conveyance, and such mortgage is entitled to the same preference over a prior judgment as it would have had if it had been executed to the vendor himself.\u201d 1 Jones on Mortgages (6 .ed.), \u00a7 472.\n' Professor Pomeroy has this to say on the subject:\n\u201cEven in the absence of any statute, and upon the general principles of equity, a purchase-money mortgage given at the same time as the deed, or as a part of the same transaction, has precedence over any prior general lien, such as that part of a prior judgment against the mortgagor. The same equitable rule applies in like manner to a mortgage given by the grantee to a third person, as security for money loaned for the purpose of being used, and which is actually used, in paying the purchase price.\u201d 2 Pomeroy\u2019s Equity Jurisprudence (3 ed.), \u00a7 725.\nThe following cases, among many others, fully sustain the text: Kaiser v. Lembeck, 55 Ia. 244; Clark v. Butter, 32 N. J. Eq. 664; Moring v. Dickerson, 85 F. C. 466; Rogers v. Tucker, 94 Mo. 346; Roane v. Baker, 120 Ill. 308; Courson v. Walker, 94 Ga. 175.\n\u201cThe reason given,\u201d says the Forth Carolina court in stating the principle in the above cited ease, \u201cis that the execution of the deed and of the mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands, and without stopping, vests in the mortgagee, and during such instantaneous passage no lien of any character can attach to the title.\u201d\nThe facts presented in this record bring the case within that rule as to the mortgage under which appellant claims title, but the real turning point in the case is whether or not appellant\u2019s lien under the mortgage was superior to the State\u2019s lien for the fine and costs assessed against Thomas.\nThe statute provides that \u201cthe property, both real and personal, of any person charged with a criminal offense, shall be bound from the time of his arrest, or the finding of an indictment against him, whichever shall first happen, for the payment of all fines and costs which he may be adjudged to pay.\u201d Kirby\u2019s Digest, \u00a7 2467.\nThis court, in an early case, speaking of that statute, said:\n\u201cThis provision of law, we have no doubt, creates a lien in favor of the State, on all of the property of a person charged with a criminal offense, wheresoever it may be within the limits of the State, which attaches upon and binds it, not only in the hands of the accused, but .also in the hands of any other person who shall, in any manner, possess or hold it, from the time of the arrest or indictment found, as mentioned in the statute, until the accused is discharged from the prosecution, or such fines and costs as shall be adjudged against him are paid.\u201d Lawson v. Johnson, 5 Ark. 168.\nIt is insisted by learned counsel for appellant that the lien which arises under the statute from the time of the finding of the indictment or the arrest, whichever first occurs, does not attach to after-acquired property.\nBut we think counsel are clearly mistaken in their interpretation of the statute. The binding force of the statute begins at the time of the arrest or finding of the indictment, but it gathers within its sweep all property owned by the accused from that time until the judgment subsequently rendered for fine and costs be paid.\nSimilar language is used in the statute creating liens in favor of judgment-creditors, the language being that a judgment shall be a lien \u201cfrom the date of its rendition,\u201d and this court held in Real Estate Bank v. Watson & Hubbard, 13 Ark. 74-82, that the lien attached to any property acquired subsequent to the rendition of the judgment.\nThe main question is whether the State\u2019s lien attached as against the unrecorded mortgage.\nIt will he noted that under the authorities cited above a purchase money mortgage must be simultaneous with the execution of the deed of conveyance in order to take precedence over prior liens, for if there is any intervening, space of time during which the title rests in the purchaser the prior liens attach to it in preference to the mortgage. Cohn v. Hoffman, 50 Ark. 108.\nThe registration statutes of this State provide that \u201cevery mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder\u2019s office for record, and not before.\u201d Kirby\u2019s Digest, \u00a7 5396.\nThis court has held that, notwithstanding the provision of the statute with reference to registration of mortgages, an unrecorded mortgage is valid between the parties and as against persons holding the property under voluntary conveyance. Main v. Alexander, 9 Ark. 112; Leonhard v. Flood, 68 Ark. 162-168.\nThis is obviously so, because the registration statute is not intended to apply between the parties to a mortgage or to a grantee under a voluntary conveyance.\nBut is it valid as against the State\u2019s claim? We think not. If the statute, by express language, made the mortgage good except' as against third parties, it might well be argued that the State was not deemed to be a party within its meaning. But the language is quite different. It declares, unconditionally, that the mortgage \u201cshall be a lien on the mortgaged property from the time the same is filed in the recorder\u2019s office for record, and not before.\u201d\nWhen the two statutes involved in this case are read together, the one which declares that the property of an accused person shall.be bound for the fine and costs from the time of his indictment or arrest, and the one which declares when a mortgage lien shall take effect \u2014 the conclusion is unavoidable that the Legislature meant to give the State a lien against an unrecorded mortgage.\nIt does not follow that the State would have a lien as against equities , of third parties not within the registration statutes; but where the statute has, as in this case, unconditionally provided that there shall be no lien until the mortgage is recorded, it would he straining the language of the lawmakers to say that an unrecorded mortgage should he valid as against the State\u2019s statutory lien.\nWe are of the opinion, therefore, that the State\u2019s lien was superior and that appellees acquired a superior title under their purchase at the execution sale. The decree of the chancery court is, therefore, affirmed.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ "A. J. Stack and Frank H. Sullivan, for appellant.", "Stuckey \u00e9 Stuckey and Lon L. Campbell, for appellee." ], "corrections": "", "head_matter": "Western Tie & Timber Company v. Campbell.\nOpinion delivered July 6, 1914.\n1. Mortgages \u2014 security for purchase price \u2014 priority of claim of mortgagee. \u2014 A mortgage given at the time of the purchase of real estate, to secure the payment of the purchase money, whether given to the vendor or to a third person who, as a part of the same transaction, advances the purchase money, has preference over all judgments and other liens against the mortgagor. (Page 572.)\n2. Criminal procedure \u2014 state\u2014lien for fine and costs. \u2014 Under Kirby\u2019s Digest, \u00a7 2467, the lien in favor of the State for fines and costs, against the property of defendant in a criminal prosecution, begins at the time of the arrest or finding of the indictment, and gathers within its sweep all the property owned by the accused from that time until judgment, subsequently rendered for fine and costs, is paid. (Page 574.)\n3. Mortgages \u2014 security for purchase money \u2014 prior lien. \u2014 A' purchase money mortgage must be given simultaneously with the execution of the deed, of conveyance in order to take precedence over prior liens, for if there is any intervening space of time during which the title rests in the purchaser, the prior liens attach to it in preference to the mortgage. (Page 574.)\n4. Mortgages \u2014 unrecorded mortgage \u2014 lien.\u2014An unrecorded mortgage is valid as between the parties and as against persons holding the property under a voluntary conveyance. Kirby\u2019s Digest, \u00a7 5396 (the registeration statute) does not apply between the parties to a mortgage or to a grantee under a voluntary conveyance. (Page 575.)\n5. Liens \u2014 state\u2014purchase money mortgage. \u2014 The lien of the State under Kirby\u2019s Digest, \u00a7 2467, for fines and costs, is superior to an unrecorded purchase money mortgage, given after the lien of the \u25a0State, under the statute, became effective. (Page 575.)\n\u2022 Appeal from Jackson Chancery Court; George T. . Humphries, Chancellor;\naffirmed.\nA. J. Stack and Frank H. Sullivan, for appellant.\n1. The appellant\u2019s lien under the mortgage is superior to the lien of the State for the fine and costs. Kirby\u2019s Dig., \u00a7 2467; 35 Ark. 445; 59 Id. 213. The State has no lien on after-acquired property. 50 Ark. 112.\n2. Outside the 'State the authorities are uniform that the mortgage is the superior lien. 1 Jones on Mort. (6 ed.), \u00a7 \u00a7 468-472; 92 Ga. 746; 131 Id. 668; 20 111. 57; 55 la. 245; 32 Ark. 258.\nStuckey \u00e9 Stuckey and Lon L. Campbell, for appellee.\n1. The lien of the State 'attached February 26,1904; the lien of the deed of trust did not attach until November 4, 1904, hence the State\u2019s lien is superior. Kirby\u2019s Dig., \u00a7 2647; 93 Ark. 42; 65 Id. 532.\n2. The State\u2019s lien was prior in time and bound all property from the time of indictment or arrest. There is no room for construction \u2014 the language is plain. Kirby\u2019s Dig., \u00a7 \u00a7 2467-5396; 93 Ark. 42; 70 Id. 566; 102 Id. 415; 97 Id. 43; 13 Id. 82-85; 50 Id. 108; 21 Id. 202. \u2022" }, "file_name": "0570-01", "first_page_order": 590, "last_page_order": 596 }