Hudgens v. Morrow

• Decision Date: 06 November 1886
• Citation: 2 S.W. 104
• Parties: HUDGENS <I>v.</I> MORROW.
• Court: Arkansas Supreme Court

2 S.W. 104

HUDGENSv.

MORROW.

Supreme Court of Arkansas.

November 6, 1886.

Appeal from circuit court, Jefferson county. In chancery.

N. T. White, for appellant. W. P. Stephens and John McGregor, for appellees.

COCKRILL, C. J.

Suit was begun by the appellees, in the Jefferson circuit court in chancery, in October, 1884, to redeem lands that had been sold under a deed of trust, with power of sale, and purchased by the appellant in March, 1880, and to cancel the deed executed by the trustee to him as purchaser. The trust deed was executed by W. T. Morrow, in the spring of 1878, to secure a debt of $445, due to one Meyer, evidenced by a note maturing in the winter of the same year. The note was not paid at maturity, and the trustee advertised the lands for sale in accordance with the terms of the deed, but, before the day of sale arrived, Morrow, the grantee, died, and the sale was postponed at the instance of the administrator of the estate. Subsequently the lands were again advertised by the trustee, and the sale made, at which the appellant became the purchaser, his bid being $550, which was paid, and applied to the satisfaction of Meyer's debt, and the costs of executing the trust. The lands were worth about $1,600 at the time of the sale. The appellees are the heirs at law of Morrow, and some of them were still minors at the institution of this suit. The court granted the prayer of the complaint found that the rents received by the appellant had reimbursed him for all expenditures made, canceled his deed, and decreed that the appellees be put into possession of the lands.

The record presents nothing upon which the decree can be sustained. At the date of the execution of the deed of trust there was no provision in our law for redemption from a sale made by a trustee under such a deed. The act of March 17, 1879, (Mansf. Dig. § 4759,) confers the right of redemption in such cases; but in the case of Robards v. Brown, 40 Ark. 423, it was ruled that this act could not be held to apply to instruments executed before its passage, and that case is decisive of this upon the question of redemption. No fact is shown that furnishes a reason for canceling the deed executed by the trustee to the appellant. The power of sale contained in the mortgage executed by Morrow, — for the deed was in effect only a mortgage, — being coupled with an interest in the lands, could not be revoked by him, and his death did not defeat or suspend the right to execute the...