Bush v. Cella

• Decision Date: 11 January 1890
• Parties: BUSH v. CELLA
• Court: Arkansas Supreme Court

12 S.W. 783

52 Ark. 378

BUSH v. CELLA

Supreme Court of Arkansas

January 11, 1890

APPEAL from Miller Circuit Court, C. E. MITCHELL, Judge.

This is an action of ejectment, to recover possession of a lot in the Town of Texarkana. The complaint is in the usual form and alleges title in the plaintiff under conveyances from the United States government to one Thomas T. Murray, and from him to the plaintiff.

The defendant answered, denying plaintiff's ownership of the lot, and alleging that said Thomas T. Murray, on or about November 1, 1885, being the owner of said lot, entered into negotiations with defendant to sell it for him; that Murray proposed to take $ 300 for it, and give defendant for his commissions all over that sum which he might be able to get that defendant then proposed to purchase it himself for that sum, to which Murray agreed. This was consummated on or about November 13, 1885. Defendant then borrowed from J. L. Cella the husband of plaintiff, $ 300, with which to make the purchase, agreeing to repay said amount with 20 per cent interest thereon, after the expiration of one year, and further agreeing that the deed might be made by Murray to said Cella, or to his wife, the plaintiff, to be held as security for such repayment, and a reconveyance to be made to defendant upon such repayment. Defendant afterwards, upon maturity of the loan, presented a deed to plaintiff for her examination and signature, stating that he was prepared to pay the loan and interest as agreed upon. Plaintiff disclaimed any knowledge of the transaction, and desired to consult her husband about it. Defendant then left her house thinking that at a convenient time the deed to him would be properly executed and presented and the money demanded, and he alleges a willingness and readiness at all times since the maturity of the loan to pay it and the 20 per cent. interest thereon according to agreement. The answer further states that ever since his said purchase from Murray, defendant has lived on said lot with his family, has made valuable improvements thereon, paying about $ 200 therefor, and has paid all taxes assessed against it, and that plaintiff was never consulted nor asked to pay for any of these things; and denies that defendant wrongfully holds possession of the lot or has damaged plaintiff, and prays that the cause be transferred to the equity docket; that plaintiff's deed be held and treated as a mortgage to secure the money loaned that plaintiff be required to convey the lot to defendant upon payment by him of the $ 300 and interest as agreed on, which sum he then brought into court and tendered, and for other relief. To this answer plaintiff demurred. The demurrer was sustained, and defendant declining to answer further, judgment was rendered against him, and he appealed.

Judgment reversed and cause remanded.

Dan W. Jones and Thomas B. Martin, for appellant.

1. Parol evidence is admissible to show that a deed, absolute on its face, was intended as a mortgage. 5 Ark. 321; 18 id., 34; 7 ib., 505; 13 ib., 112; 15 ib., 280; 23 ib., 479; 40 ib., 146.

2. If the cross-complaint set up a defective or uncertain defense, a motion to make more certain and definite, was the proper mode to correct, and not a demurrer. 31 Ark. 383; 32 ib., 131-5-6.

Scott & Jones, for appellee.

1. It requires clear and decisive testimony to show that a conveyance, absolute on its...