Independence Federal Savings & Loan Ass'n v. Davis

Robert H. Dudley, Justice. The appellees’ petition for rehearing is denied, but in their petition the appellees have called attention to an error of appellate procedure in the original opinion.

The trial court held for the appellees and the appellant gave notice of appeal. The appellees gave no notice of cross-appeal but in their Point III argue: “The Chancellor Erred In Determining That The Contracts For Deed Entered Into By Appellees Violate Paragraph 17 Of The Mortgage.” Our original opinion erroneously states that appellees were seeking affirmative relief but gave no notice of cross-appeal. However, a notice of cross-appeal is necessary only when an appellee is seeking something more than he received in the lower court. Moose v. Gregory, 267 Ark. 86 , 590 S.W.2d 662 (1979). Here appellees’ point is that the chancellor erred in his reasoning but reached the right result. Appellees were asking only that the chancellor be affirmed and therefore no notice of cross-appeal was necessary. Thus, we were in error in refusing to consider the issue.

We now consider the point but find it to be without merit. The due-on-sale clause was triggered “[i]f all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent ...” The appellees Davis sold their equity by contract to the appellees Swink for $ 1,719.00 and transferred the right of possession to them. Under the terms of the executory contract steps remained to be taken in the future, but the sellers were nevertheless bound to perform their agreement. The buyers acquired a substantial interest in the property. See Pulaski Federal Savings & Loan Ass’n. v. Carrigan, 243 Ark. 317 , 419 S.W.2d 813 (1967). Under the terms of the mortgage the transfer of a substantial interest in the property was sufficient to accelerate the maturity date of the loan and declare the entire debt due.

The petition for rehearing is denied.