Bell v. Pelt

• Decision Date: 25 May 1889
• Citation: 11 S.W. 684,51 Ark. 433
• Parties: BELL v. PELT
• Court: Arkansas Supreme Court

11 S.W. 684

51 Ark. 433

BELL v. PELT

Supreme Court of Arkansas

May 25, 1889

APPEAL from Columbia, Circuit Court in Chancery, C. W. SMITH, Judge.

Judgment affirmed.

J. M Kelso, for appellant.

The notes were payable in cotton and no vendor's lien can be enforced thereon. 37 Ark. 348. Nor was Pelt the vendor at all and hence could have no lien. No lien was reserved in the deed in favor of the vendor even, and certainly the assignee of the notes had none. Gantt's Dig., sec. 174 and cases cited.

The substitution of a new note with the recital that it was for purchase money, gave no lien.

Atkinson & Tompkins, for appellee.

The lien in this case is not the equitable vendor's lien, but is a lien created by contract of the parties, an equitable mortgage. Review Mansf. Dig., sec. 474; 28 Ark. 401; 37 Ark 511, 516, 517 and other decisions, and cite 54 Ill. 130; 67 Ill. 34; 2 Head, 151; 3 Ib., 537; 53 Miss. 85; 2 Yerger, 84; 9 Head, 128; 8 Allen, 536; 6 S.W. 420; 2 Ib., 737; 58 Texas 383; Story Eq. Jur., secs. 791, 1020, 1231.

OPINION

HEMINGWAY, J.

The record in this cause discloses about the following state of case. On the 1st day of November, 1879,. one W. W. Atkinson sold to the appellant, by warranty deed, for the consideration of nine hundred dollars, the lands in controversy. The deed recites full payment of the consideration in cash, but a part at least was not so paid. The appellant gave Atkinson two or more obligations for the delivery of cotton, and it is probable that the entire consideration was to be so paid. Two of these cotton obligations were assigned by Atkinson to the appellee; the cotton was not delivered according to their terms, and on the 10th of January, 1883, the appellant and appellee had a settlement of the matter, and fixed the sum of $ 320.64 to be paid on a account of them. When the settlement was made, the appellant executed and delivered to the appellee an instrument in the words following:

$ 320.64. On or by the 1st day of November, 1883, I promise to pay James D. Pelt, or bearer, the sum of three hundred and twenty dollars and sixty-four c'ts, for value received with ten per cent. interest from the 1st day of November, 1882. This note given as aid for that of the purchase money of, parcel land, the W1/2 of NW1/4, sec. 21, and the SE1/4 of SE1/4, sec. 17, and the NE1/4 of sec. 20, all in township 15, range 20 west, and vendor's lien is hereby reserved on said land for the purchase money, all of the above land being in the county of Columbia and State of Arkansas.

This the 10th day of January, 1883.

Witness my hand

JOHN M. BELL. his mark X

Witness, J. D. PELT.

In the deed from Atkinson there was no express reservation of a lien. The complaint alleges the execution of the deed, the assignment of purchase money notes, that a lien was reserved in the deed, that the settlement of January 10th 1883, was made, and asks that the lands be charged with a lien and sold to pay the debts.

The defendant filed a general demurrer with answer.

He contests the claim to a lien; first, because the plaintiff sued as assignee, and no lien was expressly reserved in the deed; second, because obligations to deliver cotton, executed in purchase of land, are not secured by a vendor's lien.

The plaintiff demurred to the answer, his demurrer was overruled and the suit went to final hearing. The court found that the instrument of January 10th, 1883, was intended to be, and in fact was, a mortgage on the land, and accordingly rendered judgment, from which the defendant prosecutes this appeal. As the vendor's lien was not expressly reserved in the deed from Atkinson, Pelt as the assignee of Bell's paper could acquire none. Mansfield's Digest, sec. 474 and cases cited. As Bell gave no promissory notes in the purchase of the land, but gave contracts to deliver specified quantities of cotton at specified times, there was no vendor's lien even in favor of the vendor. Harris v. Hanie, 37 Ark. 348. The decree can and no support in the original transaction. This conclusion requires that we determine the character and effect of the instrument of January 10th, 1883, for the decree must stand upon it, if at all. What is the instrument? It comprises, first, an ordinary promissory note by the appellant to the appellee; second, a recital that it is given "in aid" of the note for purchase money; third, a stipulation that a lien is thereby reserved on the land, which is accurately described. This is not an ordinary, technical mortgage; it contains neither words of grant nor defeasance. Is it an instrument which a court of equity will enforce as an equitable mortgage? Such an instrument has never received the consideration of this court, so far as we are advised. In the case of Barnett, et al., v. Mason, et al., 7 Ark. 253, a bill of sale was offered in evidence and excluded, which contained the statement, "that B. A. & L. are to retain a lien on the boat until the above named notes are discharged." The court say that "the mere allegation in the bill of sale that they retained a lien, cannot be considered a mortgage." Again a note contained this expression: "The tax lien given by law on my property, for which this money was advanced to pay taxes, I hereby recognize." But the law gave no lien, and as the owner only "recognized" the lien given by law, there was no lien fixed by the notes. Peay, admr., et al., v. Feild, 30 Ark. 600. A lien was claimed on a crop upon the following expression, in a note: "This note constitutes a lien upon the cotton and corn raised upon said land this year." It was held not to create a lien; to be a mere assertion, and not an undertaking. Roberts, et al., v. Jacks, 31 Ark. 597. A lease executed by both lessor and lessee, reserving a lien in favor of the lessor on crops to be grown on the demised land, was held to be a chattel mortgage. Mitchell, et al., v. Badgett, 33 Ark. 387. A deed recited that "said lands and improvements are held bound for the payment of said two notes." This was held to be an equitable mortgage. Talieferro's Exr. v. Barnett, 37 Ark. 511. The recital in a promissory note given for land, that "this note is to stand as a lien on said land until fully paid," was held not to create a mortgage. No precise reason is given for this conclusion. The fact that the expression contains no words of grant is alluded to, but the opinion seems to rest on the mason that controlled in the other cases cited, that the terms used implied the mere suggestion of a fact, and not a stipulation, a statement and not an obligation. Waddell, admr., v. Carlock, 41 Ark. 523. The defect pointed out in the cases cited was that, while the instrument under consideration contained statements in one form or another, that liens would be or were retained, they indicated no intent to create or fix the liens. They professed to state what were assumed as facts, but indicated no purpose to accomplish them. The instrument under consideration provides that "a vendor's lien is hereby reserved." It is not a recital of what has been done or exists, but is a manifest effort, by its own terms and through its own efficiency to...