Bazemore v. Mullins

• Decision Date: 09 November 1889
• Citation: 12 S.W. 474
• Parties: BAZEMORE <I>et al.</I> <I>v.</I> MULLINS.
• Court: Arkansas Supreme Court

12 S.W. 474

BAZEMORE et al.v.

MULLINS.

Supreme Court of Arkansas.

November 9, 1889.

Appeal from circuit court, Columbia county; C. W. SMITH, Judge.

Marshal & Coffman, for appellants. J. M. Kelso and Smoote, McRae & Arnold, for appellee.

COCKRILL, C. J.

The conveyances which Mullins caused to be made to the appellants by way of security for his indebtedness were absolute in form. There is a conflict in the testimony as to what indebtedness they were intended to secure. Mullins' statement that they were intended to secure only the sum of $250 which the appellants lent him in January, 1883, is not very probable, because the deed to the Baker tract was not executed until long after that indebtedness had been paid, according to his theory; and he took from the appellants a bond to convey to him the other tract upon the payment of $900, in January, 1885, when it was estimated that that was the sum that would be due by him on settlement at the close of that year. But in the view we take of the cause that question ceases to be material. Mullins had also executed chattel mortgages to secure all his indebtedness to the appellants. At the close of 1885, a settlement was reached by mutual agreement. The lands in dispute were valued at $400. Mullins orally released to the appellants all further claim to them, and received a credit upon his account for that amount. He discharged the balance due upon his account by delivery of corn and payment of cash to the appellants, and received from them a receipt showing the full payment of all his indebtedness, and demanded and obtained satisfaction upon the record of his chattel mortgages. He took the chattels which had been released from the mortgages into Louisiana, and there disposed of them, retook the corn, and converted it to his own use, and now actively invokes the aid of a court of chancery to invest him with the title to the land. He alleges in his complaint that he had discharged his entire indebtedness to the appellants. It appears from his own testimony, however, as it does from all the other evidence in the cause, that the claim of payment alleged in his complaint is based solely upon the release of the lands, the delivery of the corn, and the cash payment made in the settlement above referred to. But if the lands are taken from the appellants, and their value, and that of the corn, withdrawn from the terms of the settlement, Mullins' debt will be in great part unpaid, but the security which the appellants held for its payment is gone, and Mullins cannot or will not restore it. It is manifest that it would be inequitable, under such circumstances, to cancel the deeds to the appellants, without first requiring Mullins to pay to them his entire debt. That would only require equity of him. Anthony v. Anthony, 23 Ark. 479; State v. Morgan, ante, 243.

But there is another consideration which puts a final quietus upon Mullins' claim for relief. His own testimony shows that, upon a fair settlement with the appellants, he released his interest in the lands to them for an...