Hudgens v. Morrow

• Decision Date: 06 November 1886
• Citation: 2 S.W. 104,47 Ark. 515
• Parties: HUDGINS v. MORROW ET AL
• Court: Arkansas Supreme Court

2 S.W. 104

47 Ark. 515

HUDGINS v. MORROW ET AL

Supreme Court of Arkansas

November 6, 1886

APPEAL from Jefferson Circuit Court in Chancery, Hon. JOHN A WILLIAMS, Circuit Judge.

Decree reversed.

N. T White for Appellant.

The findings of the court are not sustained by any evidence.

The legal title was in the trustee. Perry Trusts., sec. 315; 15 Ark. 55; 11 Id., 94; 18 Id., 85; 42 Id., 504. Deeds of trust are not affected by the death of grantor. Jones on Mortgages sec. 1792. There is not a scintilla of proof that there was any unfairness, injustice, or inequity in the sale, so the decree was based solely on inadequacy of price, and this is not of itself sufficient to vacate a sale. 122 Mass. 122; 11 Mo. 211; 19 W.Va. 1; 53 Tex. 37; 24 Minn. 417.

No appraisement was necessary under Act March 17, 1879. 40 Ark 423; 1 Howard, 311. Nor did appellees have the right to redeem under Mansf. Dig., sec. 3072, for this applies only to sales under decrees of courts; and besides, it reserves no right to minors after twelve months. Secs. 3067 to 3071, Mansf. Dig. See also Jones Mortg., sec. 1915, and 31 Mich. 426.

W. P. Stephens and John McGregor for Appellees.

Where there is abuse of confidence or ingredients of a suspicious nature or peculiar relations between the parties, gross inadequacy of price furnishes the most vehement presumption of fraud. Kerr on Fraud and Mistake, p., 187; 1 Story Eq. Jur., sec. 246; 38 Ark. 584; Perry on Trusts, sec. 602, (O.); Jones on Mortg., secs. 1906-9-11-15. And where the parties are minors, not able to protect their rights, the sale will be more readily set aside. Jones Mortg., sec. 1911. Less than fraud will do. 38 Ark. 590-1.

But appellees had the right to redeem. They had no day in court. There should have been a suit to foreclose. 38 Ark. 589; 42 Id., 222.

This was nothing but a mortgage. 4 Neb. 308; 19 Am. Rep., 658; 1 Peters, 441; 43 Ark. 519.

As to their right to redeem see Mansf. Dig., secs. 3067, 3072.

OPINION

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 grantor, died, and the sale was postponed at the instance of the administrator of his 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 $ 1600 at the time of 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, cancelled his deed and decreed that the appellees be let 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., sec. 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 power. Conners v. Holland, 113 Mass. 50; 2 Jones Mortg., sec. 1792.

The closest scrutiny of the facts does not disclose any circumstance...