Irby v. Irby, 5-1036
| Decision Date | 12 November 1956 |
| Docket Number | No. 5-1036,5-1036 |
| Parties | W. W. IRBY, Appellant, v. F. L. IRBY, Appellee. |
| Court | Arkansas Supreme Court |
Spencer & Spencer, El Dorado, Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.
L. B. Smead, Camden, Walter L. Brown and Robert C. Compton, El Dorado, for appellee.
There are two points here. First, there is the question of whether an instrument which appears to be a deed on its face is, in fact, a mortgage. And second, if the instrument is a deed, as it appears to be, has the grantor reacquired the property by adverse possession?
The appellant, W. W. Irby, and the appellee, F. L. Irby, are brothers. We will hereafter refer to appellant as Walter and to appellee as Frank. They live in Union County. Frank is a doctor and Walter is a small farmer. Walter owned a 220-acre farm on which he cultivated about 67 acres. In 1923, a mortgage on the farm had matured, and the bank was threatening foreclosure. Walter gave to Frank what appears on its face to be a deed. In 1954, Walter filed this suit to quiet title in him, contending that the instrument he executed and delivered to Frank in 1923 is, in fact, a mortgage, and also claiming the property by adverse possession. There was a decree in favor of Frank, and Walter has appealed. There is no serious controversy between the parties as to the law. Both sides recognize that, to prove an instrument which appears on its face to be a deed is, in fact, a mortgage, the evidence must be clear, cogent and convincing. Burns v. Fielder, 197 Ark. 85, 122 S.W.2d 160; Grimes v. Evans, Ark., 285 S.W.2d 510.
Walter contends that in 1923, when the debt to the bank in the sum of $2,260.62 became due, the property was worth more than the indebtedness, and that he had made arrangements with another bank to refinance the loan, but that Frank stepped into the picture and agreed that he would advance the money to pay off the bank, and charge no interest; that pursuant to this agreement Frank paid the bank and Walter gave to Frank the instrument which appears to be a deed, but which Walter contends is a mortgage. Walter also maintains that he was to repay Frank on or before some time in 1928, and, as evidence of the agreement that Frank would reconvey the property to Walter upon payment of the debt, Frank executed and delivered a 'bond for title', which provided for a reconveyance of the property when the debt was paid; that later, the bond for title was destroyed when the house burned. Walter further contends that, in any event, since the year 1938 he has held the property by adverse possession and has acquired title in that manner.
Frank contends that in 1923 his father approached him with the proposition of paying the bank and taking up the mortgage to prevent a foreclosure; that the property was not worth more than the amount owed on it; that he refused to go along on that proposition but, later, he did agree to buy the property outright and let Walter and his family continue to live there until such time as Frank might decide to sell the place. He says the instrument in question is what it purports to be--a straight-out warranty deed with no strings attached--and that he executed no bond for title. Frank further says that at no time since he purchased the property has it been called to his attention that Walter claimed to own the place.
The record consists of over 480 pages and it would be impractical here to abstract all of the testimony. Frank and Walter testified, as above indicated. In addition, Walter stoutly maintains that his use of the property has been such as to be wholly inconsistent with anything other than ownership and is, therefore, strong circumstantial evidence corroborating his version of the transaction. His former wife corroborates him in saying that Frank executed a bond for title, however, she says that there was no due date of any money owed, whereas Walter says the bond for title provided the debt was to be paid by 1928. In addition, Walter produced evidence to the effect that he has rented some of the land to others. But, it is not uncommon for a tenant to sublet farming land. He produced evidence of the fact that on numerous occasions he sold timber from the land, but Frank testified that on one occasion Walter sold timber from the land in the sum of $1,108.00 and spent the money; and, since he could not deliver title to the timber, Frank had to go to his rescue and repay the $1,108 to the lumber company. Walter testified that he executed a lease to Calgo Oil Company and took a draft to pay Frank, but that the deal failed because...
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