(on rehearing). Counsel for appellants, Terry .and Taylor, asked for a rehearing on the ground that they were entitled to redeem in accordance with the terms named in the mortgage. They base their contention on section 7 of the 'Stipulation filed October 8, 1915.
It will be remembered thafi section 7 provides, in effect, that all land sold thereafter and not mentioned in defendants “exhibit 8” are to be released upon the payment of the pro rata amount per acre as by the terms of the original mortgage.
We will first take up the claim of Terry. The whole of the stipulation of October 8, 1915, is to be read and considered together. Terry did not testify in the case. According to the testimony of another witness, which is not disputed, Terry wanted a release from the mortgage of about 1,407 acres of land under the terms of the original mortgage upon the payment of $10.70 per acre, making a total of $15,054.90. He demanded that there be deducted from this amount the sum' of $7,500 which was conditionally agreed to be allowed the mortgagor as damages. Section 9 provides that if the mortgagor failed to make the payments provided for in section 3, a decree of foreclosure in vacation might be entered of record and the counter-claim of the mortgagor he dismissed. The undisputed evidence shows that the payments were not made as required by the stipulation. The tender was made by Terry on January 5, 1916. Therefore, it will be seen that the- time for making the payments had expired and the mortgagor was not entitled to be allowed the $7,500 as damages. When this is deducted from the amount tendered by Terry, it is plain that he did not even tender the amount provided for in the mortgage.
In the early part of January, 1916, Newald met his attorneys, Terry and Taylor, and consulted about the foreclosure proceedings. Newald had not complied with the provisions of the stipulation of October 8, 1915, Avith regard to the payments to' be made. He knew that under the stipulation the mortgageehad a right tohave the mortgage foreclosed. He informed his attorneys that he was not able to make the payments as required by the stipulation. He then executed the deeds to a part of the lands embraced in the mortgage to Terry and Taylor. The principal part of the consideration was the attorney’s fees he owed them. The deeds to Terry and Taylor were executed at a time when the mortgagor had failed to make the payments as provided in the stipulation and ,at a time when the mortgagee was entitled to a foreclosure of the mortgage. Terry and Taylor, under the circumstances, had no greater rights than the mortgagor and were not entitled to have the lands released at all.
Section 7 provides that all lands sold hereafter and not mentioned in defendant’s exhibit 8 ,are to be released upon the payment of the pro rata amount per acre as per the terms of the original mortgage. Exhibit 8 is not in the record and for aught that appears to the contrary the lands purchased by Terry and Taylor may be mentioned in exhibit 8. Every presumption is in favor of the correctness of the decision of the court below, and in order to warrant a reversal, error must affirmatively appear from the record. This has been established by an unbroken line of decisions in this court. Hence it was incumbent upon Terry and Taylor to have seen that exhibit 8 was in the transcript, and not having done so, the presumption is in favor of the correctness of the decree. Norman v. Poole, 70 Ark. 127; Hardie v. Bissell, 80 Ark. 74, and Tatum v. Crownover, 94 Ark. 58.
Applying this rule, it will be presumed that the lands conveyed to Taylor and Terry were a part of those referred to in paragraph 6 as held in our original opinion.
Therefore, the motion for a rehearing will be denied.