#### Board of Directors St. Francis Levee District v. Home Life & Accident Company.

Opinion delivered March 5, 1928.

*560 Wils Davis, Sam Costen and Mann & McCulloch, for appellant.

Daggett & Daggett, for appellee.

Kirby, J.,

(after stating the facts.). Appellant insists that the court erred in not holding the claim barred by the statute of limitations, and its contention must be sustained.

Our statute provides the remedy of the landowner where the board of directors of a levee or drainage district have appropriated or condemned lands for the construction or maintenance of levees or ditches, and that all actions for recovery of damages, against such districts for the appropriation of lands shall be instituted within one year after the construction of the levee or drains, and not thereafter. Sections 3940, 3942, C. & M. Digest.

*561Appellee, the mortgagee of the lands, not having-been included in the proceedings for the condemnation thereof, was not bound thereby, and his lien on the land not affected, not having- been 'given notice of such proceedings, and the payment of the damages by the condemnor, under such circumstances, to the mortgagor, could not prevent the mortgagee from compelling a second payment to himself or foreclosure on the land taken for the improvement, although he would first be required to resort to the land remaining after the condemnation. Schichtl v. Home Life & Accident Co., 169 Ark. 415, 275 S. W. 745.

The mortgagee should have'been made a party to the condemnation proceedings, and notified thereof in the manner provided by statute, and could not be deprived of its superior lien by condemnation and award made without notice, and the payment of any such award was at the peril of the condemnor.

The mortgagee, although not bound by the condemnation proceedings, not being a party thereto and having no notice thereof, could have proceeded, after the foreclosure of his lien and the purchase of the lands, to the collection of the amount of damages for the land condemned for payment of his deficiency judgment. He must have done this, however, within the time provided by law for the bringing of such suits, one year after the construction of the levee, and, not having done so, the suit being brought more than one year and eight months after its construction, the statute being pleaded, his •cause of action was barred, and the court erred in holding otherwise. Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604; Guaranty L. & T. Co. v. Helena, 148 Ark. 56, 228 S. W. 1045.

Having held that the appellee was not entitled to recover, his cause of action being barred by the statute of limitations, we need not discuss the other questions raised.

For the error designated the decree will be reversed, and the cause dismissed for want of equity. It is so ordered.