Rushton v. McIllvene

• Decision Date: 30 November 1908
• Citation: 114 S.W. 709,88 Ark. 299
• Parties: RUSHTON v. MCILLVENE
• Court: Arkansas Supreme Court

114 S.W. 709

88 Ark. 299

RUSHTON v. MCILLVENE

Supreme Court of Arkansas

November 30, 1908

Appeal from Columbia Chancery Court; Emon O. Mahoney, Chancellor reversed.

Reversed and remanded.

Stevens & Stevens, for appellant.

No fraud is alleged or shown. A deed absolute on its face will not be construed as a mortgage, unless the evidence is clear and decisive that it was given and accepted as a mortgage. 19 Ark. 278; 31 Ark. 163; 40 Ark. 146; 75 Ark. 554.

C. W McKay, for appellee.

OPINION

BATTLE, J.

The question in this case is, was the deed executed by R. L. Emerson and his wife to A. Rushton, on the 9th day of December, 1905, whereby they conveyed to him block thirty in the town of Emerson, and covenanted with the grantee that they would forever warrant and defend the title thereto against all claims whatever, a mortgage? The trial court held that it was a mortgage, and Rushton appealed.

The block was sold by R. L. Emerson to J. M. McIllvene on time. Emerson executed to McIllvene a bond for title and bound himself to convey to McIllvene when the purchase money was paid. McIllvene, being unable to pay the purchase money at the time it became due, applied to Rushton for a loan of money, and offered to secure the same, if made, by mortgaging the block.

Rushton testified as follows: "He refused to loan him the money, but purchased the block from him, agreeing to pay therefore the sum of $ 225. On the 9th day of December, 1905, the day after the agreement to pay $ 225, McIllvene caused Emerson to convey the block to Rushton, and in a few days thereafter Rushton paid the $ 225 to McIllvene, who was to remain in possession of the block, free of rent, until the first day of July following. About two weeks after the conveyance McIllvene offered to purchase the block at $ 250, and Rushton agreed to sell at that price, and to give him until the first of July following to pay for it. On the 27th of July, 1906, he tried to get him to pay as much as $ 50 of the purchase price, and he (McIllvene) said he was unable to do so, and moved off and left the place, and Rushton took possession. About the last of December, 1906, he (McIllvene) offered to return the $ 225 and interest to Rushton, and he refused to accept it, saying that the block was his, and he had a deed for it."

J. M McIllvene testified: In December, 1905, he applied to Rushton for a loan of $ 225, and offered to secure the loan by a mortgage on the block. He (Rushton) refused to loan the money at ten per cent. per annum, but said he would loan it to witness until the first day of July, 1906, if he would pay him $ 25 for the use of it, and witness promised to do so, and upon "this agreement caused Emerson to make the deed executed by him (Emerson); and Rushton loaned witness the $ 225 until the first of July following. This agreement was not reduced to writing, witness believing that Rushton would perform his contract. About the 27th of July, 1906, Rushton urged witness to pay him as much as fifty dollars of the amount he loaned him, and he, witness, replied that he was unable to do so, but he was going to leave the houses, "and if he (Rushton) could rent them out until Christmas, he, witness, would give him the rent above the interest on his money," and he said he would do it. In December, 1906, witness offered to return the money and interest, and he, Rushton, refused to accept it. On...