Levy v. McDonnell

• Decision Date: 22 November 1909
• Parties: LEVY et al. v. McDONNELL.
• Court: Arkansas Supreme Court

122 S.W. 1002

LEVY et al. v. McDONNELL.

Supreme Court of Arkansas.

November 22, 1909.

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor.

Action by Minnie B. Levy and another against J. S. McDonnell. From a decree for defendant, plaintiffs appeal. Affirmed.

Taylor & Jones, for appellants. Crawford & Hooker, for appellee.

McCULLOCH, C. J.

Minnie B. Levy and her husband, W. J. Levy, two of the appellants herein, by their deed duly executed and delivered, containing covenants of general warranty of title, conveyed in fee simple to one Davis a tract of land in Jefferson county for the sum of $5,000, payable in eight equal annual installments, as evidenced by the promissory notes of said Davis duly executed to them and recited in said deed. After the habendum and the warranty clauses of the deed, there follows this stipulation: "And when all of said notes are paid according to the tenor and effect thereof, then this instrument is to become absolute, and if the said Davis shall fail to pay said indebtedness for any year according to the tenor and effect of said notes, then in that event this conveyance shall be void and the grantors shall be entitled to possession and said grantee is to be held as a tenant of the said Minnie B. and W. J. Levy for any year he shall so fall and shall be liable to the grantors for rent in the sum of six hundred and twenty-five dollars, and when the rent shall be paid for each year to the amount as set out in said notes, then he is to have the same placed to his credit as purchase money." Davis failed to pay the second note, which fell due on November 1, 1905. He had mortgaged his crop on the land to appellee for supplies, and during the fall of the year he gathered the crop and delivered it to appellee, and the latter sold it and applied the proceeds in satisfaction of his mortgage debt. This action against appellee was subsequently instituted in chancery to recover from him the proceeds of said crop, and a lien on said crop is asserted under the above-quoted stipulation in the deed.

It will be noticed, in the first place, that the stipulation does not expressly purport to declare a lien on the crop. Therefore it cannot be held to constitute an equitable mortgage. If any lien exists at all, it is by virtue of the relation of landlord and tenant, which is declared to arise in the event that said Davis shall fail to pay either of said notes. Appellants rely upon the principle stated in the following...