{ "id": 1505577, "name": "Hamilton v. Rhodes", "name_abbreviation": "Hamilton v. Rhodes", "decision_date": "1904-10-29", "docket_number": "", "first_page": "625", "last_page": "630", "citations": [ { "type": "official", "cite": "72 Ark. 625" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "38 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900480 ], "opinion_index": -1, "case_paths": [ "/ark/38/0285-01" ] }, { "cite": "32 Ark. 645", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877126 ], "opinion_index": -1, "case_paths": [ "/ark/32/0645-01" ] }, { "cite": "20 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "18 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726693 ], "opinion_index": -1, "case_paths": [ "/ark/18/0521-01" ] }, { "cite": "38 Ark.. 296", "category": "reporters:state", "reporter": "Ark.", 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"opinion_index": -1, "case_paths": [ "/ark/49/0430-01" ] }, { "cite": "29 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882920 ], "opinion_index": -1, "case_paths": [ "/ark/29/0489-01" ] }, { "cite": "30 Ark. 418", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "44 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893391 ], "opinion_index": -1, "case_paths": [ "/ark/44/0180-01" ] }, { "cite": "55 Ark. 268", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322286 ], "opinion_index": -1, "case_paths": [ "/ark/55/0268-01" ] }, { "cite": "22 Minn. 548", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 561869 ], "opinion_index": 0, "case_paths": [ "/minn/22/0548-01" ] }, { "cite": "1 Hill, 107", "category": "reporters:state", "reporter": "Hill,", "opinion_index": 0 }, { "cite": "51 Ill. 415", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 816419 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"cite": "49 Ark. 508", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1310168 ], "opinion_index": 0, "case_paths": [ "/ark/49/0508-01" ] } ], "analysis": { "cardinality": 596, "char_count": 11345, "ocr_confidence": 0.713, "pagerank": { "raw": 7.867030804716865e-08, "percentile": 0.45944918024178244 }, "sha256": "32dc4517704bef717476114f9166503502239bacf7a682ce8c19ee441d72c6d1", "simhash": "1:262afd4b0202b66a", "word_count": 2078 }, "last_updated": "2023-07-14T14:55:00.960408+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Hamilton v. Rhodes." ], "opinions": [ { "text": "Hughes, J.\nAs stated in appellant\u2019s abstract and brief, this was an action instituted in the chancery court of Mississippi county to set aside a trustee\u2019s sale of certain lands, made in foreclosure of a trust deed executed by the late J. M. Hamilton and wife to J. E. Sloan as trustee for the use and benefit of J. W. Rhodes & Co., at which sale J. W. Rhodes, one of the appellees herein, became the purchaser of said lands.\nThe trust deed under which this sale was made was given to secure the said J. W. Rhodes & Co. in the payment by the said J. M. Hamilton of two several and distinct debts, the one a promissory note for $277.43, and the other \u201cfor all additional advances made by said second parties (J. W. Rhodes & Co.) to first party (J. M. Hamilton) to enable him to make his crop for the year 1897.\u201d\nAs shown by the deposition of J. W. Rhodes, this note was given in settlement of a balance then due from the said J. M. Hamilton to the said J. W. Rhodes & Co., and the said J. W. Rhodes & Co. commenced furnishing advances to the said J. M. Hamilton, under said trust deed, from the date thereof, and continued to do so up to the time of Hamilton\u2019s death, December 2, 1897: and after Hamilton\u2019s death they continued advancing to his widow, one of the appellants herein, who remained in possession of the crop until said crop was finished in the way of being gathered and prepared for market; which said advances upon open account aggregate $489.89.\nAfter the crop had been marketed and the proceeds thereof had been applied by the creditors, J. W. Rhodes & Co., to the payment of the open account, it was found that the total credits to which the said J. M. Hamilton was entitled amounted to $493.10, or an excess of $7.31 over and above the aggregate of said open account, which still left owing to the said J. W. Rhodes & Co., the beneficiaries under said trust deed, the amount of said note, $277.43, less the excess of the $7.31 credited on open account, with 10 per cent, interest from date; in satisfaction of the amount of which note, less the $7.31 on open account, and interest, and some $6.19 of taxes, the lands conveyed in said trust deed were sold by the trustee in May, 1898, under the provisions of said trust deed, and they were purchased by the appellee, J. W. Rhodes.\nAppellants in their brief set out six grounds why, in their judgment, said trustee\u2019s sale should have been set aside, and this cause be reversed for error.\n1. \u201cBecause said land was sold for less than two-thirds of the appraised value.\u201d\nThe land was appraised at $400. And while it is true that the trustee\u2019s deed from J. E. Sloan to J. W. Rhodes recites a consideration of only $230, J. W. Rhodes, both in his direct examination and in his cross-examination, testified that, as a matter of fact, the property sold for and was purchased by him at the price of $330; and witness assigns, as his reason for giving this amount, $330, that his debt, with the attendant costs of foreclosure, amounted to about this sum, and he desired to bid enough for the property to cover his debt and said cost of foreclosure, in the event that the land should be redeemed; although he did not consider the property to be worth so much money. Now, Mr. Rhodes\u2019 evidence upon this point, that-the recital of a consideration of $230 in the trustee\u2019s deed to Rhodes was a clerical error in the drafting of the deed, stands uncontradicted, and no effort was made to contradict it.\n2. \u201cBecause saidj deed of trust had been satisfied in full at the time of the foreclosure.\u201d\nThe deed of trust was given to secure a note for $277.43, and \u201call additional advances made by second parties (J. W. Rhodes & Co.) to first party (J. M. Hamilton) to enable him t\u00f3 make his crop for the year 1897.\u201d And appellants\u2019 claim that no part of J. W. Rhodes\u2019 account, made subsequent to the first day of August, was secured by said deed of trust, because a crop is made when it is laid by, and a crop is usually laid by about the first day of August, is untenable. We think that the contention of the appellant on this point is not supported by sound reason or authority, but that the doctrine of Bell v. Ratcliffe, 32 Ark. 664, is correct, in which the court held that in a mortgage which limited the amount of the advances to be furnished for making a crop, the creditor was protected for advances made over and above the amount specified; that the true amount must be determined by the \u25a0 effect and purposes of the. trust and the actual necessities of the case. A mortgagee will be protected for advances on a growing crop necessary to protect his security against waste or destruction. Hughes v. Johnson, 38 Ark. 296; Fry v. Ford, 38 Ark. 255; Caldwell v. Hall, 49 Ark. 508.\n3. The third ground for motion for new trial is because appellee has no right to' apply payments of the credits to the open account, to the prejudice of the note. When one party is indebted to another in two different sums, and a payment is made by him without instruction as to which debt the payment is to be applied to, the creditor is at liberty to apply it to either debt. The evidence shows that the appellee applied the payment to the satisfaction of his account first. There were no instructions given by the debtor as to the application of the payments. Bell v. Ratcliffe, 32 Ark. 645; Hughes v. Johnson, 38 Ark. 285. It appears that the two mares conveyed by the mortgage were not taken or their value applied by the appellee toward the satisfaction of his debt, for the reason that Mrs. Hamilton desired to retain them. It is also in proof that appellee did not receive any corn or hay to be applied on his debt or aught else save what was credited on Hamilton\u2019s account.\n4. \u201cBecause appellee, J. W. Rhodes, could not become purchaser of said trust property.\u201d\nAppellee\u2019s counsel contends that Rhodes was really the trustee, but in the deed of trust Sloan was mentioned as trustee, and. there is no reason that Rhodes could not purchase the property. The appellant\u2019s contention in this, behalf is not tenable.\n5. \u201cBecause the sale was not fairly and faithfully conducted.\u201d\nThis was a question decided by the chancellor on the testimony. The evidence in the case is not clear that the chancellor was wrong.\n6. \u201cBecause of the inadequacy of the price paid for said lands by appellee, J. W. Rhodes.\u201d\nThe land was appraised at $400. The deed of the trustee Sloan to Rhodes states as the consideration paid by Rhodes $230. Rhodes testified that he bid for the land, and it was sold to him for $330, and that $230 instead was placed in the deed by mistake of the draftsman. A court of equity has jurisdiction to correct mistakes.\nIt is shown by the evidence that the sale was made for an amount larger than that secured by it, and it is contended that it rendered the sale void, and that it should be set aside. It appears from the account of the appellee exhibited with his answer that advances made' to Mrs. Hamilton, after the death of her husband, the mortgagor, were charged in the account, and constituted a small part of the amount for which the land was sold by the trustee. But, as it does not appear that any fraud was practiced at the sale, nor any bidders prevented from attending or bidding for the property, nor any injury done to the mortgagor, the sale will not be set aside. Fairman v. Peck, 87 Ill. 156; White v. McClellan, 62 Md. 347; Hamilton v. Lubukee, 51 Ill. 415; Klock v. Cronkhite, 1 Hill, 107. Doubtless in a proper proceeding the mortgagor\u2019s representative would be entitled to recover the amount, by which the sum bid exceeded the debt secured and the costs of sale. See Spottswood v. Herrick, 22 Minn. 548.\nThe evidence is sufficient to support the decree, which is affirmed.", "type": "majority", "author": "Hughes, J." } ], "attorneys": [ "D. P. Taylor, for appellants.", "S. S. Semines, for appellees." ], "corrections": "", "head_matter": "Hamilton v. Rhodes.\nOpinion delivered October 29, 1904.\n1. Mortgage \u2014 sale under power \u2014 appraised value. \u2014 A sale of land under a power contained in a mortgage will not be set aside because the deed recites a consideration less than two-thirds of the appraised value, if uncontradicted parol evidence establishes that the land sold for a sum in excess of two-thirds of the appraised value, and that the recital of the smaller sum was a clerical mistake in drafting the deed. (Page 627.)\n2. Mortgage to secure advances \u2014 construction.\u2014A mortgage given to secure a sum named and \u201call additional advances made by second parties to first party to enable him to make the crop\u201d covers all advances necessary to enable the mortgagee to gather his crop, whether made before or after the crop is laid by. (Page 628.)\n3. Payment \u2014 application.-\u2014-Where one is indebted to another in two different sums, and makes a payment without applying it, the creditor is at liberty to apply it to either debt. (Page 628.)\n4. Mortgage sale \u2014 right of mortgagee to purchase. \u2014 Where a mortgage mentioned a third person as trustee, the mortgagee may purchase at a foreclosure sale conducted by the former. (Page 629.)\n5. Same \u2014 EFFECT of mistake in account. \u2014 Where a mortgagee purchased the mortgaged land at a sale under a power contained in the mortgage, and paid therefor by crediting the purchase money on the account secured by the mortgage, the fact that such account included a relatively small amount not secured by the mortgage will not invalidate the sale if no fraud was practiced at the sale, nor any bidders prevented from bidding for the property, nor any injury otherwise done to the mortgagor. ( Page 629.)\nAppeal from Mississippi Chancery Court.\nEdward D. Robertson, Chancellor.\nAffirmed.\nD. P. Taylor, for appellants.\nThe trustee\u2019s sale was void because the land was sold for less than two-thirds of its appraised value. Sand. & H. Dig. \u00a7 5111; 55 Ark. 268. The recitals of the deed are conclusive on the trustee. 44 Ark. 180; 30 Ark. 418; 29 Ark. 489. Said deed of trust had been satisfied in full at the time of the foreclosure, and the account after August 1, 1897, was not secured by the trust deed. 1 Greenlf. Ev. '\u00a7 \u00a7 128, 295; 2 Greenlf. Ev. 248, 252; 20 Am. & Eng. Enc. Law, 962-964; 49 Ark. 430; 50 Ark. 2591 Ark. 285; 36' Ark. 97; 30 Ark. 753; 12 Ark. 428; 1, Jones, Mortg. \u00a7 377; 2 Perry, Tr. 169, 170; 150 Mass. 112. On, application of payments, see: 30 Ark. 750; 2 Pars. Cont. 633 ; 1 St. Eq. Jur. \u00a7 459; 47 Ark. 112; 38 Ark. 294, 295; 30 Ark. 750; 28 Ark. 440; La. I; 49 Ark. 508; 47 Ark. 17; 2 Jones, Mortg. \u00a7 1081; 56 Ark. 139. The sale, being in effect to the trustee, was void. 55 Ark. 472; 42 Ark. 25 ; 26 Ark. 445; 23 Ark. 627; 20 Ark. 402; 3 Yerg. 383 ; 1 Pickle, 33; 119 N. Car. 450; 2 Perry, Tr. \u00a7 602a. The sale should be set aside because not fairly conducted. 38 Ark. 584; 41 Ark. 264; 2 Perry, Tr. \u00a7 602s; 1 Id. pp. 225-6; Wiltsie, Forecl. Mortg. \u00a7 542; 41 Ark. 264; 38 Ark. 584. The sale should be set aside for inadequacy of price. 41 Ark. 267-270; 47 Ark. 515; 1 Perry, Tr. 225, 226; 2 Wiltsie, Eorecl. Mortg. 1338. Rhodes is at best in the status of a mortgagee in possession. 55 Ark. 326; 40 Ark. 275.\nS. S. Semines, for appellees.\nThe recital of consideration in the deed is not binding. 17 Ark. 146; 18 Ark. 65; 15 Ark. 275 ; 54 Ark. 192. One who holds a lien on a crop may make advances to protect or save it. 38 Ark.. 296; lb. 255; 49 Ark. 508. Payments made without instructions may be applied as the creditor prefers. 18 Ark. 521; 20 Ark. 513; 32 Ark. 645; 38 Ark. 285." }, "file_name": "0625-01", "first_page_order": 643, "last_page_order": 648 }