Gill v. Hardin

• Decision Date: 05 March 1887
• Citation: 3 S.W. 519
• Parties: GILL <I>v.</I> HARDIN and another.
• Court: Arkansas Supreme Court

3 S.W. 519

GILLv.

HARDIN and another.

Supreme Court of Arkansas.

March 5, 1887.

Appeal from circuit court, Conway county.

S. R. Allen, for appellant. J. H. Harrod, for appellees.

COCKRILL, C. J.

The appellant, Gill, was indebted to one Moore, and, desiring to secure the payment of the debt, agreed to execute a mortgage to him upon real estate in the town of Morrillton for that purpose. The land at that time was incumbered by mortgage and judgment liens, and after negotiation between the parties these liens were paid off by Moore and a Dr. Crowell, another of Gill's creditors, who was also to be protected by the mortgage, and Gill then executed a deed, absolute in form, to the appellee Hardin, under a parol agreement that Hardin should sell the land, and out of the proceeds discharge, first, the debt to Moore, then that to the other creditor, and pay the residue over to him. The deed was executed to Hardin instead of Moore, because it was feared Moore's wife would retard the contemplated sales by refusing to relinquish dower. The device of securing the debts by a conveyance absolute in form was suggested by Gill, for the reason, as he testifies, that he was "somewhat involved," which is made plain by the explanation that he was in debt. There appears to have been a mutual understanding between the secured creditors and Gill that Hardin should not execute a deed to any part of the land until Gill approved the price for which it was to be sold. About a year after the conveyance to Hardin, Hervey, one of the appellees, purchased the land from Hardin for the sum of $1,200, paid on delivery of the deed. Before concluding his purchase, he sought Gill, who was in possession of the property, and informed him that he was negotiating with Hardin to purchase it. Gill supposed that Hervey had been referred to him by Hardin to ascertain the price to be placed on the land, but gave him no intimation of the secret agreement not to sell the premises without his consent. Hervey returned to Hardin, and obtained a conveyance. The price paid was less than the amount due Moore. Gill was dissatisfied with the sale, and filed his bill against Hervey, Hardin, and the heirs of Moore to redeem. In the mean time Hervey had instituted his action for the possession of the land. Gill filed a cross-complaint, the same in effect as his original complaint, and the case was transferred to equity, and there consolidated and tried with Gill's suit. The decree was against Gill...