Gordon v. Reeves
| Decision Date | 08 December 1924 |
| Docket Number | 29 |
| Citation | 267 S.W. 133,166 Ark. 601 |
| Parties | GORDON v. REEVES |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Chancery Court, Second Division; John E Martineau, Chancellor on exchange; affirmed.
Decree affirmed.
Sam T. & Tom Poe, and Smead & Meek, for appellant; Chas H. Blish, of counsel.
An absolute deed delivered in payment of a debt is not converted into a mortgage merely because the grantee therein gives a contemporaneous stipulation binding him to reconvey on being reimbursed, within an agreed period, an amount equal to the debt and interest thereon. Jones on Mortgages, 7th ed., vol 1, p. 342, par. 265, and p. 349, par. 267; 75 Ark. 551; 27 Cyc. 998; Id. 1010. The legal presumption is always against the commission of fraud, which must be affirmatively proved. 27 C. J. 44. The deed being absolute in form, the burden was on appellee to show that it was a mortgage. 105 Ark. 314; 27 Cyc. 1017, 1018. To justify a court in holding that a deed absolute in form was intended as a mortgage, the proof to that effect must be clear, consistent, unequivocal satisfactory, and convincing. 27 Cyc., p. 1025; Id., p. 1024; Blue Book on Evidence (Jones), vol. 1, par. 50, p 247; 163 Ark. 157. The decree rendered was not warranted by the pleadings. No relief can be granted under a general prayer which is not consistent with the main theory and purpose of the bill and supported by its allegations. 21 C. J. 682; 90 Ark. 241; 7 Ark. 530; 7 Ark. 516; 13 Ark. 187; 30 Ark. 628. The amendment to the complaint alone stated a cause of action, and its effect was to withdraw the facts and issues raised in the original complaint.
Courts take judicial cognizance of terms of courts. 34 Ark. 576. It was not the intention of the Legislature by act 372, Acts 1923, p. 333, to create a new court, but a branch of the established court. A perpetual court was not intended, as the idea is excluded by act 7, § 12 of the Constitution. By law a new term of court was to commence on June 18. An adjournment was taken from June 15 to June 25, a period within the next term, and the regular term commencing June 18 was never formally opened, and consequently had lapsed. C. & M. Dig., § 2209-10. The action of Judge Martineau on June 27 could not therefore, under the circumstances, be sustained as the act of a de facto judge. 71 Ark. 310. No written agreement for exchange of circuits being on file on or prior to the date of the trial of this cause, Judge Martineau was without authority to try the case. Section 2224, C. & M. Digest. All evidence showing a verbal agreement for exchange of circuits is incompetent. Authority could be proved only by the record of the statutory exchange agreement. See the following cases on authority of special judges, etc: 72 Ark. 320; 52 Ark. 113; 70 Ark. 497; 79 Ark. 248; 19 Ark. 96; 19 Ark. 100; 91 Ark. 582; 118 Ark. 310; 125 P. 609; 6 S.E. 700; 21 Fla. 346; 67 Ga. 246; 1 S.E. 876; 33 Pa. 338; 65 N.C. 511; 66 Ga. 715; 40 Ala. 629; 6 S.W. 40; 17 Ind. 67; 53 Mo. 88; 78 S.W. 110; 141 Ark. 201; 6 Ark. 227. Appellant is not estopped to raise here the question of the authority of Judge Martineau to try the case, as this would be equivalent to holding that consent imparts judicial power. 45 Ark. 478; 39 Ark. 254; 50 Ark. 344; 145 Ark. 604; 79 Ark. 284. It is elementary that the court cannot by nunc pro tunc make the record speak what it should have spoken. 92 Ark. 299; 87 Ark. 439; 118 Ark. 310.
D. D. Glover and D. M. Halbert, for appellee.
The fact that the account has never been balanced shows that it is an existing debt and that the intention of the parties was to secure the debt by giving a mortgage which was written in the form of a deed. 75 Ark. 551. The fraud practiced in securing the instrument was sufficient to overcome the presumption that the paper was intended to be a deed, instead of a mortgage. 159 Ark. 257.
Adam Reeves, one of the appellees, was, on March 23, 1916, the owner in fee simple of the tract of land in controversy, which contains about seventy-eight acres, and is situated in Ouachita County, Arkansas. On that date he was indebted to the estate of George L. Ritchie, deceased, in the sum of $ 347.60 on open account, and he executed to appellant Gordon, as executor of the estate of Ritchie, a deed conveying said land in fee simple for the consideration of the extinguishment of said debt to the Ritchie estate. On the same day, and contemporaneously with the execution of said deed, Gordon executed to appellee Reeves a written instrument whereby he agreed to give said appellee the right to repurchase said land within two years from that date on payment of the sum of $ 347.60 with interest from date, and that, upon payment of said sum, he would execute to said appellee a deed reconveying said land to him. This instrument was delivered by Gordon to Reeves, and the latter kept it thereafter in his possession. Adam Reeves remained in possession of the land and cultivated the same, and so continued until the present time.
This action was instituted by appellee Adam Reeves and his wife against appellant Gordon, and others claiming an interest, in December, 1922, alleging that the deed executed by Reeves to appellant Gordon was intended as a mortgage and praying an accounting of the amount due, and a decree as to the rights of redemption. Appellees alleged in their complaint that they are ignorant persons, and that they were induced to execute said deed under the false and fraudulent misrepresentations made to them that it was a mortgage; that the written instrument executed by appellant Gordon and delivered to them was represented to be a copy of the mortgage, and that they did not receive any information to the contrary, being permitted to remain unmolested in possession of the land, until some time during the year 1922, when a visitor at their home looked at the paper and called their attention to the fact that it was not a copy of a mortgage, but that it was a contract of different import. Appellee also alleged that, after the execution of the deed in March, 1916, they continued in possession, as before stated, and that, during the year 1916, they harvested two and a half bales of cotton of the market value of $ 375, and in the year 1917 harvested one and one-half bales of cotton of the market value of $ 225, and in the year 1918 harvested a bale of cotton with a market value of $ 125, all of which was delivered to appellant Gordon to be credited on the supposed mortgage.
On the trial of the issues, appellees testified themselves and introduced other witnesses tending to support the allegations of their complaint that they were led to believe that the deed executed by them was a mortgage, that they did not receive information to the contrary until the year 1922, and that they had delivered the quantity of cotton of the value mentioned above to appellant Gordon during the years mentioned.
Appellants introduced testimony tending to show that there was no misrepresentation concerning the character of the instruments, and appellant Gordon also introduced his accounts showing supplies furnished to appellees during the years 1916, 1917, 1918 and 1919, and the amount of cotton delivered for credit of the proceeds on the account. This account shows that only one bale of cotton was delivered in the year 1916, one bale in 1917, together with a small cash payment, and a bale in the spring of 1919 of the crop of 1918.
On the trial of the cause the court found that the deed was intended as a mortgage, having been given to secure a debt due the estate of Ritchie, and entered a decree declaring the same to be, in effect, a mortgage, and permitting appellees to redeem therefrom by paying the sum of $ 347.60 with interest, which was declared to be a lien upon the land. The appellees have not appealed or cross-appealed.
It is contended, in the first place, that the decree is void, and should be reversed for the reason that the court was not in session on the day the decree was rendered and that there was no authority for the court to sit on that day. This contention involves an interpretation of the statutes in regard to holding courts in Ouachita County.
The terms of the chancery court of Ouachita County were fixed by act No. 10 of the session of 1919 to begin quarterly on the third Mondays in March, June, September and December. The General Assembly of 1923, at the regular session, enacted a statute (act No. 372) providing for an additional chancellor for the seventh chancery circuit, which includes the counties of Ouachita and Union. The statute provides for the division of these courts in Ouachita and Union counties into two divisions, to be known as the first and second divisions, and provides for the appointment of another chancellor to hold the second division of the court. Section 8 of the statute reads as follows: "For the purpose of expediting business in said second division of the chancery court of Union and Ouachita counties, the court of said division shall be always open for the transaction of business, and may sit in either county and may hear and try causes at the same time and in the same county where the first division may be in session." The present case was heard and the decree rendered on June 27, 1923. It appears from the record before us that Honorable George M. LeCroy the chancellor of the second division, held court on June 15 and adjourned over to June 25, which was after the commencement of the June term according to the original statutes, which began on June 18. On June 25 a special chancellor was elected to hold the court for that day, and adjourned over to June 27, when the court was opened by Honorable John E. Martineau,...
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