Ark. Code Ann. § 18-49-101 (2026)

Case Notes

Constitutionality.

Former similar law was constitutional. Hill v. Gregory, 64 Ark. 317, 42 S.W. 408 (1897); Lester v. Richardson, 69 Ark. 198, 62 S.W. 62 (1901) (preceding decisions under prior law).

In General.

This section covered the entire subject matter of Acts 1889, No. 58, p. 73, and worked an implied repeal thereof. Coco v. Miller, 193 Ark. 999, 104 S.W.2d 209 (1937).

Applicability.

Former similar law applied to mortgages with power of sale and deeds of trust when sought to be foreclosed by trustee's sale; and when it affirmatively appeared from the face of the mortgage that the debt was barred, and there were no marginal entries on the record to take the debt out of the operation of the statute, the right to foreclose was also barred as against third persons though payments had been made. Hill v. Gregory, 64 Ark. 317, 42 S.W. 408 (1897); Lester v. Richardson, 69 Ark. 198, 62 S.W. 62 (1901) (preceding decisions under prior law).

This section applies to debts secured by mortgage and not barred at the time of its passage or made thereafter and does not apply to mortgage debts barred at the time of its passage. Rhodes v. Cannon, 112 Ark. 6, 164 S.W. 752 (1914).

The statute of limitations as to mortgages does not apply to equitable mortgages. Shapard v. Mixon, 122 Ark. 530, 184 S.W. 399 (1916).

This section has no application where the property is pledged and delivered to the pledgee. Hill v. Bush, 192 Ark. 181, 90 S.W.2d 490 (1936).

This section did not apply where no extension agreements or payments were made on a note and it was not necessary to have them, foreclosure suit having been instituted within the statutory period of limitation. First State Bank v. Cook, 192 Ark. 213, 90 S.W.2d 510 (1936).

In action to foreclose mortgage, kept alive by its assumption by grantees in chain of title, made less than five years before institution of suit, this section was not applicable. Webb v. Alexander, 195 Ark. 727, 113 S.W.2d 1095 (1938).

Subsection (a) of this section, which bars a foreclosure action from being commenced after the expiration of the limitations period governing the underlying obligation, does not apply to a federal foreclosure action brought by the Farmers Home Administration. United States v. Warren Brown & Sons Farms, 868 F. Supp. 1129 (E.D. Ark. 1994).

Farm Service Agency was entitled to recovery on three defaulted notes because it filed suit within the applicable limitations period established by 28 U.S.C.S. § 2415(a); the limitations period under Arkansas law established under this section was inapplicable to such a lawsuit. United States v. FJN Contrs., Inc., No. 08-CV-1065, 2009 U.S. Dist. LEXIS 90278 (W.D. Ark. Sept. 30, 2009).

Acceleration Clauses.

Acceleration clause contained in note and mortgage for benefit of payee and enforceable at his option did not start the statute of limitations running upon failure to make payment of interest. Hodges v. Taft, 194 Ark. 259, 106 S.W.2d 605 (1937).

Debt Barred.

Suit to foreclose mortgage was barred when the debt or liability secured by it was barred. Holiman v. Hance, 61 Ark. 115, 32 S.W. 488 (1895); Whipple v. Johnson, 66 Ark. 204, 49 S.W. 827 (1899); Coleman v. Fisher, 67 Ark. 27, 53 S.W. 671 (1899); Goodman v. Pareira, 70 Ark. 49, 66 S.W. 147 (1901); Gatens v. Neely, 70 Ark. 122, 66 S.W. 438 (1902) (preceding decisions under prior law).

Execution of a mortgage upon surrender of notes was an extension of time, and mortgage was not barred until action was barred on the original note. Hance v. Holiman, 69 Ark. 57, 60 S.W. 730 (1901) (decision under prior law).

Where a cause of action on a note was barred by the statute of limitations, a mortgage securing such note is likewise barred. Taylor v. Cheairs, 181 Ark. 4, 24 S.W.2d 852 (1930).

Where a promissory note was signed on March 15, 1982, with the first payment due on March 15, 1983, and where no payments were made, under the five-year statute of limitations plaintiffs were barred by law from recovering those payments that became due prior to March 13, 1986 in a foreclosure suit filed on March 13, 1991. Karnes v. Marrow, 315 Ark. 37, 864 S.W.2d 848 (1993).

Deceased Mortgagors.

Judgment could not be rendered against an heir of a deceased mortgagor. Harbison v. Vaughan, 42 Ark. 539 (1884); Pillow v. Sentelle, 49 Ark. 430, 5 S.W. 783 (1887) (preceding decisions under prior law).

After the passage of this section, the period of limitations governing the foreclosure of mortgages and deeds of trust after the death of the mortgagor, either by suit in chancery or by proceedings under the power of sale incorporated in such instruments, was not that provided by the statute of nonclaim but the general statute of limitations applicable to the debt for which the security was given had the debtor not died. England v. Spillers, 128 Ark. 31, 193 S.W. 86 (1917).

A mortgage is enforceable after the mortgagor's death so long as the debt is not barred, regardless of the statute of nonclaim. Burlingham v. Hutchins, 184 Ark. 764, 43 S.W.2d 362 (1931).

The rights of the widow of a deceased mortgagor are subject to a mortgage existing at the time of the marriage, if foreclosure is sought before it is barred by limitations, and even if debt is barred by limitations and no foreclosure is brought, widow can assert no rights without paying debt. Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563 (1937).

Estoppel.

Where one buys land upon which there is an apparent valid mortgage of record, he buys subject to the mortgage and may not thereafter plead the statute of limitations, if the mortgage is not in fact barred, though by the record it apparently expired by failure to endorse payments. Jimerson v. Reed, 202 Ark. 490, 150 S.W.2d 747 (1941).

Bank which took mortgage containing warrant of title to mortgaged property against all claims except prior mortgage was estopped to plead the statute of limitations against prior mortgage when it became barred for failure to endorse credits on the margin thereof. Bank of Atkins v. Griffin, 205 Ark. 203, 168 S.W.2d 382 (1943).

Limitations Applicable.

The statute of limitations applicable to open accounts could not be pleaded against a debt secured by mortgage which recited that the defendant was indebted to the plaintiff in a certain sum. Haney v. Holt, 179 Ark. 403, 16 S.W.2d 463 (1929).

Payments.

Where period greater than statutory period elapsed between payments on past due mortgage note, claim of mortgagee under the mortgage was barred as to third parties. Johnson v. Lowman, 193 Ark. 8, 97 S.W.2d 86 (1936).

Where payments were made and credited on the note keeping it alive beyond the time suit was instituted, debt was not barred by limitations. White v. White, 198 Ark. 740, 131 S.W.2d 4 (1939).

Payment of taxes and insurance on mortgaged property within the period of limitation, under authority contained in the mortgage, extended statute of limitations. Bell v. McIlroy, 198 Ark. 1069, 132 S.W.2d 815 (1939); Young v. Blocker, 201 Ark. 802, 146 S.W.2d 902 (1941).

A recorded mortgage was not barred by limitations on the face of the record where the defendant purchased the land from the mortgagor before mortgage was barred by the record and where the debt was in fact kept alive by payments though not endorsed on the record. R.S. Biggers & Co. v. Norman, 209 Ark. 514, 190 S.W.2d 984 (1945).

—Endorsements.

Endorsement of payments was not necessary where the record of the mortgage did not show that the mortgage was barred, although the debt secured would in fact be barred but for payments made upon the note secured. Hoye v. Burford, 68 Ark. 256, 57 S.W. 795 (1900) (decision under prior law).

Where endorsements were made upon the record of a mortgage or deed of trust, an action for the foreclosure of the mortgage would not be barred either as against the mortgagor or any third person until the debt secured by the mortgage was barred by the statute of limitations applicable thereto, and partial payments made and endorsed on the record of the mortgage continued the lien of the mortgage as against the rights of all third parties if made and endorsed before the debt was barred by the statute of limitations. Wadley v. Ward, 99 Ark. 212, 137 S.W. 808 (1911) (decision under prior law).

In order to extend the statutory bar on recorded mortgage liens, as against third parties, the burden and duty are placed upon the mortgagee to enter the payments and dates thereof on the margin of the record where the mortgage is recorded but there is no duty to enter new undertakings by the mortgagor on the record in order to extend the period of limitation as to third persons. Christian Women's Bd. v. Clark, 140 Ark. 262, 215 S.W. 631 (1919). (But see § 18-40-103).

The presence or absence of the endorsement of credits or other payments on the back of a note is not conclusive proof that payments tolling the statute were or were not made. Schaefer v. Baker, 181 Ark. 620, 27 S.W.2d 83 (1930).

Partial payments will keep alive a mortgage lien as between the parties and also as to third parties when the memorandum thereof is endorsed upon the record. Trent v. Johnson, 185 Ark. 288, 47 S.W.2d 12 (1932).

As between the mortgagor and the mortgagee, it is not necessary that payments on the mortgage debt be endorsed on the record in order to stop the running of the statute of limitations. Tyson v. Mayweather, 170 Ark. 660, 281 S.W. 1 (1926); Wasson v. Beekman, 188 Ark. 895, 68 S.W.2d 93 (1934); Kansas City Life Ins. Co. v. Marsh, 196 Ark. 1121, 121 S.W.2d 81 (1938).

Where action was barred as to prospective purchasers, it could not be revived by subsequent endorsement on the margin of the record showing a payment previously made. Johnson v. Lowman, 193 Ark. 8, 97 S.W.2d 86 (1936).

Where mortgagor continued to make payments on a mortgage acquired by his wife, and she made the endorsements required by this section, the mortgage was kept alive against one to whom he gave a quitclaim deed. Green v. Green, 231 Ark. 218, 329 S.W.2d 411 (1959).

— —Failure to Endorse.

The failure to make endorsement of payments upon a mortgage upon the margin of the record does not operate to defeat the mortgage where it has been kept alive by a subsequent written agreement. Austin v. Steele, 68 Ark. 348, 58 S.W. 352 (1900) (decision under prior law); Mullins v. Wilcox, 124 Ark. 17, 186 S.W. 290 (1916).

Statute of limitations not extended where payments were not endorsed on margin of record. Bank of Mulberry v. Sprague, 185 Ark. 410, 47 S.W.2d 601 (1932); Reed v. Pollard, 190 Ark. 566, 79 S.W.2d 1001 (1935).

Effect of failure to make marginal notations of payments on record of mortgage before the bar of limitations attaches according to the record, is, as to third parties, to reduce the instrument to the status of an unrecorded mortgage. Hamburg Bank v. Zimmerman, 196 Ark. 849, 120 S.W.2d 380 (1938).

Mortgagor's attorneys who prior to institution of foreclosure suit received from the mortgagor a deed to an undivided one-half interest in the mortgaged land, took title free from the lien of the mortgages which had been kept alive by tax payments made by mortgagee which had not been endorsed upon the margin of the record, and attorneys' interest was not lost because, inter alia, they were not under duty to make inquiry which would have put them on notice that payment of taxes by mortgagee had kept the mortgages alive. Polster v. Langley, 201 Ark. 396, 144 S.W.2d 1063 (1940).

Where foreclosure suit on mortgage was dismissed seven years after its institution and filing of lis pendens, subsequent foreclosure suit was not barred by statute of limitations as to judgment creditor of mortgagor because of failure to make marginal notation of payment on mortgage record within statutory period from filing of suit. Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), superseded by statute as stated in, Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983).

— —Sufficiency.

Endorsement held insufficient to check the operation of the statute of limitations. Clark v. Lesser, 106 Ark. 207, 153 S.W. 112 (1913).

Endorsement held sufficient to extend statute of limitations. Merchants' & Planters' Bank v. Ewan, 181 Ark. 679, 27 S.W.2d 784 (1930).

Sufficiency of marginal endorsement upon mortgage record to comply with this section was unavailable to execution creditor if the note was not barred by the statute of limitations when the foreclosure suit of such creditor was filed. Taylor v. Magnolia Loan & Inv. Co., 194 Ark. 732, 109 S.W.2d 442 (1937).

Third Parties.

One owning a royalty interest in land could plead the statute of limitations as against a foreclosure of a prior mortgage where he was not a party to the foreclosure and there was no endorsement on the mortgage record extending the time of maturity of the mortgage. Arrington v. United Royalty Co., 188 Ark. 270, 65 S.W.2d 36 (1933).

The term “third party” as used in this section means a stranger to the mortgage. Beith v. McKenzie, 191 Ark. 353, 86 S.W.2d 176 (1935).

Where second mortgage did not refer to prior mortgage, which had been duly recorded and was not barred, second mortgagee was a third party within the meaning of this section and its mortgage was subject to the prior one only as long as the lien thereof was kept alive, so that purchase by second mortgagee, at its own foreclosure sale, after the lien of the first mortgage had expired, was not subject to the first mortgage. Buckner State Bank v. Stager, 195 Ark. 1072, 115 S.W.2d 1076 (1938).

Purchaser for value from grantee of purchaser under foreclosure of second mortgage was entitled to plead the statute of limitations upon proceedings to foreclose the first mortgage even though the original mortgagors did not interpose such defense. Billingsley v. Pruitt, 226 Ark. 577, 291 S.W.2d 498 (1956).

This section protects only third-party purchasers for value whose rights are adversely affected by the failure of the first mortgagee to record a written instrument of payment. Bank of N.Y. v. University Partners, Ltd., 719 F. Supp. 1479 (W.D. Ark. 1989).

The rationale of the “stranger to the transaction” rule is to protect a subsequent mortgagee from being adversely affected by actions of other parties of which he had no notice, not to allow a subsequent mortgagee with notice of the pre-existing mortgage and extensive involvement in the affairs of the debtor to obtain a greater interest in the mortgaged property than was contemplated. Bank of N.Y. v. University Partners, Ltd., 719 F. Supp. 1479 (W.D. Ark. 1989).

—Knowledge.

When a debt secured by a mortgage was apparently barred by limitations and no payment which would stay the limitation was endorsed on the margin of the record of the mortgages, it became, as to third persons, as an unrecorded mortgage and constituted no lien upon the mortgaged property as against them, notwithstanding they had actual knowledge of the execution of the mortgage. Morgan v. Kendrick, 91 Ark. 394, 121 S.W. 278 (1909) (decision under prior law).

A third party acquiring an interest in real estate on which there is an outstanding mortgage may invoke the benefit of this section notwithstanding he may have actual knowledge of the existence of the mortgage. Beith v. McKenzie, 191 Ark. 353, 86 S.W.2d 176 (1935).

Where endorsements are not made as required by this section, the rights of third parties are not affected by payments, even though they may have actual knowledge. Johnson v. Lowman, 193 Ark. 8, 97 S.W.2d 86 (1936).

Purchaser from mortgagor, his grantee, and purchaser from grantee's administratrix at sale ordered by probate court, were all third parties protected against mortgagee's successor where no notations of payment were made on the record for statutory period after maturity of note secured by the mortgage, mere knowledge of debt being insufficient to prevent the statutory bar. Hamburg Bank v. Zimmerman, 196 Ark. 849, 120 S.W.2d 380 (1938).

Purchaser without actual knowledge of mortgage foreclosure suit or constructive notice since lis pendens notice had not been given, being a third party to the mortgage, took title free from the mortgage lien even though he acquired title by quitclaim deed. Shouse v. Scovill, 200 Ark. 441, 139 S.W.2d 240 (1940).

Husband of deceased vendor came within the class of third parties and it was immaterial whether he had actual knowledge of the mortgage and the payment thereon. Matthews v. Mullins, 201 Ark. 579, 145 S.W.2d 718 (1940).

Where payments tolling the statute of limitations were made by mortgagor but not endorsed on margin of record, after statutory period from due date of indebtedness described in the mortgage, junior mortgage became superior even though junior mortgagee knew of prior mortgage, since it was not shown that he was other than a stranger or third person to such mortgage. Clark v. Shockley, 205 Ark. 507, 169 S.W.2d 635 (1943).

Bank, which advanced additional money on first mortgage loan after knowledge that agent of mortgagor had made unrecorded payment within statutory period on prior mortgage, was entitled to recover entire amount of loan, since prior mortgage was in effect a prior unrecorded mortgage. Tucker v. Atkinson, 219 Ark. 921, 245 S.W.2d 388 (1952).

—Persons Not Protected.

Where a wife joins with her husband in executing a deed of trust on land belonging to her to secure a debt of the husband, she is not a “third party.” Harper v. McGoogan, 107 Ark. 10, 154 S.W. 187 (1913).

Heirs held not “third parties.” Armstrong v. Armstrong, 181 Ark. 597, 27 S.W.2d 88 (1930).

Where a mortgagee brought a foreclosure suit and filed a lis pendens notice before the debt was barred, one who subsequently purchased the mortgaged land from the mortgagor was not an innocent purchaser nor a third party. Wasson v. Beekman, 188 Ark. 895, 68 S.W.2d 93 (1934).

Execution creditor purchasing at own execution sale was not a third person within this section. Citizens Bank & Trust Co. v. Garrott, 192 Ark. 599, 93 S.W.2d 319 (1936).

Wife of mortgagee's tenant who purchased mortgaged premises from mortgagor was not a third party within the meaning of this section. Tyler v. Niven, 194 Ark. 538, 108 S.W.2d 893 (1937).

Heirs and persons holding under voluntary conveyances are not third parties within this section. Kansas City Life Ins. Co. v. Marsh, 196 Ark. 1121, 121 S.W.2d 81 (1938).

Where mortgagor made payments which had effect of reviving the instrument as between himself and mortgagee's assignee, and which payments were not endorsed on record, upon mortgagor's death, his widow and heirs took the same title he had and the mortgage was binding upon them since they were not third parties. Kansas City Life Ins. Co. v. Marsh, 196 Ark. 1121, 121 S.W.2d 81 (1938).

Mortgagor's vendor who claimed a vendor's lien though deed recited that purchase money had been paid could not contend that mortgagee's claim was barred by the statute of limitations because no entries of payment were made on the record, since he was not a third party within the meaning of this section. Blackwood v. Davidson, 198 Ark. 1055, 132 S.W.2d 799 (1939).

Grantee of mortgaged premises who bought subject to the mortgage was not a third party within the meaning of this section so as to be entitled to its protection, and his widow and heirs have no better standing as third parties than he did. Henry v. Coe, 200 Ark. 44, 137 S.W.2d 897 (1940).

A son, who had purchased mortgaged property from his father, could not avail himself of the defense in a foreclosure proceeding of the fact that no payment had been noted on the margin of the record, since he was not a third party within the meaning of this section. Denham v. Lack, 200 Ark. 455, 139 S.W.2d 243 (1940).

Son of mortgagor to whom property was transferred as trustee for benefit of mother and who managed property was not a third party within meaning of this section, hence he was bound by payments made on mortgage by stepson of mortgagor who had previously managed property. Tucker v. Atkinson, 219 Ark. 921, 245 S.W.2d 388 (1952).

Decedent who received quitclaim deed to land on which there was a mortgage that was not barred, thereby taking it subject to the mortgage, was not a “third party” within this section. Green v. Green, 231 Ark. 218, 329 S.W.2d 411 (1959).

Vendors' Liens.

Where land was sold and notes given for the purchase price and a bond for title was executed by the vendor, a trust relationship arose and the statute of limitations did not begin to run in favor of either party until there had been a determination of such relations. Williams v. Young, 71 Ark. 164, 71 S.W. 669 (1903) (decision under prior law).

This section as re-enacted, so as to require the endorsement of payments upon a deed retaining a vendor's lien, was prospective in its operation so that debt was valid and subsisting for a full five years subsequent to payment made before the passage of the section, but in order for further payments to further toll the statute, memorandum thereof must be endorsed upon the record in the manner prescribed by this section. Coco v. Miller, 193 Ark. 999, 104 S.W.2d 209 (1937).

An action on a promissory note executed for part of the purchase price of land was not barred by limitations where the suit was instituted within statutory period of the due date of the note. Leverett v. Williamson, 199 Ark. 910, 136 S.W.2d 478 (1940).

Ejectment action by vendor to recover possession because of purchaser's failure to make deferred payments was not barred by this statute where a payment on the indebtedness was made prior to the expiration of the statute of limitations before the action was filed. Williams v. Baker, 207 Ark. 731, 182 S.W.2d 753 (1944).