Hershey v. Luce

• Citation: 19 S.W. 963,56 Ark. 320
• Parties: HERSHEY v. LUCE
• Decision Date: 11 June 1892
• Court: Arkansas Supreme Court

19 S.W. 963

56 Ark. 320

HERSHEY v. LUCE

Supreme Court of Arkansas

June 11, 1892

APPEAL from Sebastian Circuit Court in chancery, Fort Smith District, EDGAR E. BRYANT, JUDGE.

This suit grows out of the case of Stryker v. Hershy, 38 Ark. 264. In that case the court held that, in the absence of parol evidence, the two instruments therein construed imported on their faces a Conditional sale. Upon a re-trial of the case parol testimony was introduced to show that the instruments were intended to constitute a mortgage. The trial court found that they constituted a mortgage. It is conceded that if this finding was correct, the judgment should be affirmed, otherwise it should be reversed. The evidence upon which the court's finding was based is sufficiently stated in the opinion. The instruments referred to, and the circumstances attending their execution, are stated in the report of the case in 38 Ark. supra.

Judgment reversed and remanded.

Jos. M Hill for appellant.

The only point in this case is whether the deed and agreement set forth in 38 Ark. 266 constitute a mortgage or conditional sale. If a conditional sale the title is in appellant. Tiffs court held the same agreement and deed to be a conditional sale in 38 Ark. 264; and, even admitting all the extrinsic facts put in evidence to have been properly admitted, there is a failure to show that a mortgage was intended. See Jones on Mort. sec. 326; 101 Pa.St. 514; 4 P. 113; 7 Cr. 218; 3 So 698; 31 N.W. 303; 29 id. 737; 52 Tex. 453; 32 Minn. 111; 80 Ill. 188; 44 Mo. 429; 42 Cal. 169; 28 Miss. 328; 50 Conn 267; 107 Ill. 275; 47 Wis. 160; 58 Ala. 37; 27 W.Va. 576; 27 Kas. 232; Jones, Mort. secs. 256-281.

Clendening; Read & Youmans for appellee.

This court in 38 Ark. 264, held the instruments to be a conditional sale, in the absence of parol testimony. The evidence shows both Rogers and Latham intended a mortgage, and their intention concludes the matter. 57 Wis. 415; 52 Ark. 73; 14 Pick. 480; 7 Cr. 218; 35 Vt. 125; 55 Cal. 352; 5 Ark. 321; 16 Ala. 472; 1 Sand. Chy. 56; 20 Ohio 472; 46 N.Y. 611; 46 Ill. 214; 109 Mass. 144; 12 How. 139.

OPINION

HEMINGWAY, J.

Whether certain oral proof admitted by the court was admissible, and whether the purchaser of the legal title at execution sale took subject to secret antecedent equities, are questions that we deem it unnecessary to determine. If each were solved favorably for the appellee, the judgment could not stand if the deed and contemporaneous agreement be construed against his view of them; for it is conceded that if they constitute a conditional sale, the title is in the appellant. That these instruments upon their face alone, without proof of extrinsic facts and circumstances, disclose a conditional sale, was ruled by this court in the case of Stryker v. Hershy, 38 Ark. 264. Regarding that as settled, we are called to determine their legal character in the light of the proof of extrinsic circumstances. We must therefore look to see what there is in it to give the instruments a character different from that indicated upon their face. It is in substance that the parties made an agreement; that the agreement, as made, was reduced to writing; that the writing was read over and signed as a correct memorial of the agreement; and that one of the parties, and perhaps the other, understood that it was a mortgage. There is no proof that anything was agreed upon which was not correctly incorporated in the writing, or that the latter contained anything that was not in fact agreed upon. The effect of the evidence is that the parties thought that the agreement which they made came within the legal definition of a mortgage, when in fact it lacked the essential elements of such an instrument, and its provisions stamped it as a conditional sale. The essential element of a mortgage not appearing in the instruments is an indebtedness from Rogers to Latham; for, as was held by the court in the case cited, if the deed was intended as security for a debt, they constituted a mortgage, otherwise a conditional sale. The...