{ "id": 1428226, "name": "First National Bank v. Meriwether Sand & Gravel Company, Inc", "name_abbreviation": "First National Bank v. Meriwether Sand & Gravel Co.", "decision_date": "1934-01-22", "docket_number": "4-3250", "first_page": "642", "last_page": "648", "citations": [ { "type": "official", "cite": "188 Ark. 642" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "183 S. W. 874", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 8252748 ], "opinion_index": 0, "case_paths": [ "/sw/183/0874-01" ] }, { "cite": "107 Tex. 623", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2251592 ], "opinion_index": 0, "case_paths": [ "/tex/107/0623-01" ] }, { "cite": "21 S. W. (2d) 162", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "180 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393534 ], "opinion_index": 0, "case_paths": [ "/ark/180/0238-01" ] }, { "cite": "266 S. W. 260", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "166 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378569 ], "opinion_index": 0, "case_paths": [ "/ark/166/0330-01" ] }, { "cite": "192 S. W. 883", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "127 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1550288 ], "opinion_index": 0, "case_paths": [ "/ark/127/0511-01" ] }, { "cite": "33 Ark. 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723880 ], "opinion_index": 0, "case_paths": [ "/ark/33/0328-01" ] }, { "cite": "28 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884394 ], "opinion_index": 0, "case_paths": [ "/ark/28/0082-01" ] }, { "cite": "215 S. W. 611", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "140 Ark. 418", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594383 ], "opinion_index": 0, "case_paths": [ "/ark/140/0418-01" ] }, { "cite": "42 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "37 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "28 S. W. (2d) 730", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "181 Ark. 943", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726132 ], "opinion_index": 0, "case_paths": [ "/ark/181/0943-01" ] } ], "analysis": { "cardinality": 434, "char_count": 7130, "ocr_confidence": 0.467, "pagerank": { "raw": 1.2354879528368527e-07, "percentile": 0.6066361397903893 }, "sha256": "8c885490e339b6fd4619300a5a19376357f8945d0a62a7e7a409f3065a08f1fe", "simhash": "1:c0c69d958d9dcc81", "word_count": 1154 }, "last_updated": "2023-07-14T22:44:11.517500+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Smith and McHaney, JJ., dissent." ], "parties": [ "First National Bank v. Meriwether Sand & Gravel Company, Inc." ], "opinions": [ { "text": "Kirby, J.,\n(after stating the facts). The only question for determination here is whether or not the acknowledgment of the mortgage substantially complies with the laws of this State, and whether the judgment creditors\u2019 liens are prior and paramount to the interest and equity of appellants in the property by reason of their mortgage.\nThe. suit was brought to foreclose the mortgage and declare the judgment creditors\u2019 liens subordinate and inferior to the lien of the mortgage holders. The mortgage was introduced in evidence together with the notes secured thereby, and the same appears to have been filed for record on the 1st day of August, 1927, at 9 o \u2019clock and recorded in the recorder\u2019s office at 9 o \u2019clock that day.\nThe president of the appellee gravel company identified the resolution of the hoard of directors authorizing the mortgage and also the notes secured thereby. He stated the amount due on the different notes and that it was the intention to include in the mortgage everything the company owned; and that the replacements made by the company were made with the consent of the mortgage holders.\nThe mortgage which appellants sought to foreclose is certainly, as to form and purpose, a mortgage both in law and equity. The only question which could be raised concerning the validity of the instrument is the sufficiency of the acknowledgment to entitle it to record in this State. The mortgage was taken by appellant bank, a Louisiana corporation, from appellee gravel company, also domiciled in Louisiana, upon property owned by said \u2022 gravel company situated in Arkansas. The mortgage was drawn in Louisiana, and the acknowledgment appears to have been taken in conformity with the laws of that State. To entitle said mortgage to record in this State, the acknowledgment must have been taken by an officer authorized by the laws of this State to take acknowledgments, or in substantial compliance with our statutes. Section 7380, Crawford & Moses\u2019 Digest, provides the manner and form of taking- acknowledgments to deeds and mortgages. Section 1516, Crawford & Moses\u2019 Digest, provides that an acknowledgment of tie conveyance of any real estate taken without the State must be taken before a notary public, the attestation of such acknowledgment and the form of the certificate.\nIn the instant case the instrument was acknowledged before a notary public and the certificate attested by his official seal. The instrument as acknowledged recites the appearance of the grantor, Meriwether Sand & Gravel Company, Inc., by its president, etc., and ends as follows:\n\u2018 \u2018 Thus done and signed at my office in the Parish of Caddo, State of Louisiana, in the presence of \"Ruby C. Cochran and I. C. O\u2019Leary competent witnesses on this 11th day of July, Nineteen Hundred and Twenty-Seven.\n\u201cWitnesses:\n\u201cMeriwether Sand & Gravel Company, Inc.,\n\u201cBy Jas. S. Meriwether, President,\n\u201cFrank M. Cook, Notary Public,\n\u201cBuby C. Cochran,\n\u201cI. C. O\u2019Leary.\u201d\nWe must examine the acknowledgment as made to ascertain if it be in form and substance a substantial compliance with our laws relating to such acknowledgments.\nAppellees claim that the record shows that appellants\u2019 mortgage was insufficiently acknowledged because the acknowledgment omitted the words \u201cconsideration and\u2022 purposes, etc.,\u201d or words of similar import; and that because of the fatal defect of the acknowledgment said mortgage was illegally admitted to record and the recording thereof constituted no notice of the existence of a mortgage to third parties nor any lien against the lands included therein. Appellees cite Drew County Bank's Trust Company v. Sorben, 181 Ark. 943, 28 S. W. (2d) 730, and Ford v. Burks, 37 Ark. 94, a case holding the acknowledgment invalid because the word \u201cpurposes\u201d was omitted; and also Wright v. Graham,, 42 Ark. 141.\nThe acknowledgment of the instrument herein, however, was made by the proper officers, the president and secretary of the corporation, under a resolution by the board of directors thereof duly authorizing* said mortgage, a certified copy of the resolution being attached to tmd made a part of the acknowledgment by the official, who stated, \u201cthat for and in consideration of the sum of one dollar ($1) cash in hand paid and the premises hereinafter set forth,\u201d the certificate ending as above set out: \u2018 \u2018 Thus done and signed, etc. \u2019 \u2019\nThe word \u201cconsideration\u201d is properly used in the acknowledgment while the words \u201cand the premises hereinafter set forth,\u201d certainly are words of similar import to \u201cpurposes\u201d reciting all the purposes instead of saying \u201ctherein mentioned and set forth\u201d; and said acknowledgment was a substantial and sufficient compliance with our statute, the mortgage not being invalidated by the use of such language.\nAppellants insist that, notwithstanding the holding of the chancellor that their mortgage was not entitled to record because of the defective acknowledgment and therefore constituted no lien against the property, the court erred in not holding their right to the property superior to that of appellees, who were only judgment creditors and not innocent purchasers. This contention must be sustained.\nThe instrument purports to grant, bargain, sell, transfer and assign the real estate, etc., to a trustee to be applied to the payment of the pre-existing indebtedness of these three Shreveport 'banks described therein, and would have constituted a valid legal mortgage between the parties, although no lien against the property because of the defective acknowledgment not entitling it to record. It is, however, none the less a conveyance of the property described therein by appellee to the trustee for application to the payment of appellee\u2019s indebtedness to appellants; and, whether it be considered an equitable mortgage or not, it was effective to convey appellee\u2019s interest in the property described for the purpose of securing such indebtedness.\nThe judgment creditors are not innocent purchasers, and by their judgments could only subject to the payment of their indebtedness the mortgagor\u2019s interest remaining in the property, their liens being subject to existing equities of third parties in the land, etc. McGuigan v. Ricks, 140 Ark. 418, 215 S. W. 611; Boswell v. Adlen, 28 Ark. 82; Apperson Co. v. Burgett, 33 Ark. 328; Howe v. King, 127 Ark. 511, 192 S. W. 883; Robbins-Sanford Merc. Co. v. Johnson, 166 Ark. 330, 266 S. W. 260; Snow Bros. v. Ellis, 180 Ark. 238, 21 S. W. (2d) 162; First National Bank of Amarillo v. Jones, 107 Tex. 623, 183 S. W. 874.\nThe chancellor could have foreclosed the mortgage settling the rights of all the parties, and should therefore have held the lien or claim of appellants superior to the lien of said judgment creditors and erred in not so doing. The decree is reversed, and the cause remanded with directions to enter a decree in favor of appellants in accordance with the ruling herein. It is so ordered.\nSmith and McHaney, JJ., dissent.", "type": "majority", "author": "Kirby, J.," } ], "attorneys": [ "Ned Stewart, for appellant.", "E. A. Upton and Searcy & Searcy, for appellee." ], "corrections": "", "head_matter": "First National Bank v. Meriwether Sand & Gravel Company, Inc.\n4-3250\nOpinion delivered January 22, 1934.\nNed Stewart, for appellant.\nE. A. Upton and Searcy & Searcy, for appellee." }, "file_name": "0642-01", "first_page_order": 660, "last_page_order": 666 }