Harris v. Collins

Decision Date12 May 1941
Docket Number4-6341
Citation150 S.W.2d 749,202 Ark. 445
PartiesHARRIS v. COLLINS
CourtArkansas Supreme Court

Appeal from Jefferson Chancery Court; Harry T. Wooldridge Chancellor; modified and remanded.

Decree modified and cause remanded.

H Jordan Monk, for appellant.

H K. Toney and Rowell, Rowell & Dickey, for appellee.

OPINION

MCHANEY, J.

Appellant, Mary Harris, colored, was the former wife of Earl Harris, now deceased. They were divorced, and a division of property decreed on December 2, 1937, by which the title to lots 7 and 8, block 1, Waters Addition to Pine Bluff, was vested in Earl and two lots 9 and 10, same block and addition, in Mary. On January 14, 1939, Earl Harris, then single, executed and delivered to W. H. Lee a deed to said lots 7 and 8 to secure an indebtedness to said Lee of about $ 300. Thereafter, on October 3, 1939, Earl was married to appellee, Velma Harris, and on January 15, 1940, he paid the indebtedness due to Mr. Lee and caused him to execute a deed to said lots 7 and 8 to appellee, Rebecca Collins, a sister, without her knowledge or consent, and caused said deed to be placed of record. This latter transaction was handled by Mary, but with the knowledge and consent of Earl. The deed was recorded and returned to either Earl or Mary, but was never delivered to appellee, Rebecca Collins. On May 29, 1940, according to Mary, Earl came to her to borrow $ 20 to go to a hospital in Little Rock, for an operation, but having advanced him numerous sums from time to time, after their divorce, amounting to $ 75 or more, she told him she could not give it to him, and he proposed to have his sister, Rebecca Collins, convey said lots 7 and 8 to her (Mary) for a consideration of $ 75. She let him have the $ 20. They, Earl and Mary, went to see Rebecca to get her to make the deed which she agreed to do, but it was not done at that time. Earl left for the hospital in Little Rock on May 30 and was killed in a crossing accident, and on the next day, May 31, Rebecca conveyed said lots by deed to Mary, who, on June 5, executed a deed of trust to appellant Eddie K. Monk, to secure an indebtedness of $ 250 to her attorney, for services rendered and to be rendered. Six days later, on June 11, 1940, Rebecca Collins brought this action to cancel her deed to Mary. Velma Harris, the widow of Earl who died intestate, was appointed administratrix of his estate, and on July 9, 1940, intervened in said action making Eddie K. Monk a party, and sought to have her dower and homestead interest in said lots protected. Issue was joined and a trial had, resulting in a decree holding the deed to Mary from Rebecca was given to secure a debt of $ 75, for which a lien was decreed on said lots, and in canceling the deed of trust or mortgage from Mary to Eddie K. Monk. Title to an undivided one-half interest therein was vested in Velma Harris, as her dower, in fee, and the other half in fee in the collateral heirs of Earl Harris, Rebecca Collins and others. This appeal followed.

It is conceded by all parties that the deed from Earl Harris to W. H. Lee was made to secure an indebtedness of about $ 300. It was, therefore, an equitable mortgage, although a deed absolute in form. Brewer v. Yancey, 159 Ark. 257, 251 S.W. 677. In this state, the naked legal title to real property included in a mortgage passes to the mortgagee, or to the trustee in a deed of trust, to make the security available for the payment of the debt. Foreman v. Holloway & Son, 122 Ark. 341, 183 S.W. 763; Whittington v. Flint, 43 Ark. 504, 51 Am. Rep. 572. It is also conceded that the debt secured by said deed was paid by Earl Harris to Mr. Lee on or about January 15, 1940, at a time when Velma and Earl were husband and wife. When this debt was paid, the lien of the mortgage became extinct. Bailey v. Rockafellow, 57 Ark. 216, 21 S.W. 227.

In Stebbins v. Clendenin, 136 Ark. 391, 206 S.W. 681, it was said: "It was conceded, for the purposes of the demurrer, that appellee acquired an equitable mortgage from appellant upon said real...

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4 cases
  • Mers v. Southwest Homes of Arkansas
    • United States
    • Arkansas Supreme Court
    • March 19, 2009
    ...mortgagee, or to the trustee in a deed of trust, to make the security available for the payment of the debt." Harris v. Collins, 202 Ark. 445, 447, 150 S.W.2d 749, 750 (1941). The trustee is limited in use of the title to passing title back to the grantor/borrower in the case of payment, or......
  • Riley v. First Baptist Church of Higginson, CA07-1234 (Ark. App. 5/14/2008)
    • United States
    • Arkansas Court of Appeals
    • May 14, 2008
    ...We note further that it is settled law that a deed of trust vests the holder with "naked legal title to realty." See Harris v. Collins, 202 Ark. 445, 150 S.W.2d 749 (1941). Therefore, we hold that, contrary to Riley's assertions, the plain wording of Arkansas Code Annotated section 27-66-40......
  • Bank of Oak Grove v. Wilmot State Bank, 83-21
    • United States
    • Arkansas Supreme Court
    • April 18, 1983
    ...to the mortgagee, the former retaining only an equitable interest, conditioned on payment of the indebtedness. Harris v. Collins, 202 Ark. 445, 150 S.W.2d 749 (1941); Morgan Utilities, Inc. v. Kansas City Life Insurance Co., 183 Ark. 492, 37 S.W.2d 90 (1931); Fitzgerald v. Chicago Mill and ......
  • Hope v. Hope, 4-9310
    • United States
    • Arkansas Supreme Court
    • February 5, 1951
    ...hence there can be no application of the principle announced in Roberts v. Burgett, 209 Ark. 536, 191 S.W.2d 579, or in Harris v. Collins, 202 Ark. 445, 150 S.W.2d 749; nor can there be a resulting trust, as contended for by Lillie Hope, when the controlling purpose was to transfer the prop......

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