Schlumpf v. Shofner

• Decision Date: 07 October 1946
• Docket Number: 4-7902
• Citation: 196 S.W.2d 747,210 Ark. 452
• Parties: Schlumpf v. Shofner
• Court: Arkansas Supreme Court

196 S.W.2d 747

210 Ark. 452

Schlumpf v. Shofner

No. 4-7902

Supreme Court of Arkansas

October 7, 1946

Rehearing Denied November 4, 1946.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Affirmed.

Brooks Bradley, for appellant.

Taylor Roberts and June P. Wooten, for appellee.

Robins J. Minor W. Millwee, Justice, dissents.

OPINION

Robins J.

This suit was instituted in the lower court by appellee to require appellants to perform an agreement, as to redemption of appellee's home from foreclosure, which appellee alleged was made by appellee and Frank Schlumpf, Sr., holder of a mortgage on the property. From decree of the lower court awarding appellee the relief prayed by him appellant prosecutes this appeal.

In his complaint appellee alleged that he was the owner, subject to the rights of appellants, of a certain dwelling house, with appurtenant lots, in the city of Little Rock, Arkansas, wherein appellee had lived since 1902; that he had given a first mortgage on this property to J. T. J. Fizer and a second mortgage thereon to Frank Schlumpf, Sr., father of appellant, H. J. Schlumpf; that Fizer began a suit to foreclose his mortgage, which, owing to the depression then prevailing, would have resulted in Schlumpf's lien, as well as the equity of appellee, in the property being wiped out; that while the suit was pending it was agreed between Frank Schlumpf, Sr., and appellee that if the Fizer mortgage could be bought for $ 500 less than due thereon Schlumpf would purchase it and allow appellee to redeem the property by making monthly payments until the entire amount of Schlumpf's outlay, and the debt owing to him, together with interest, and his advances for taxes, insurance and repairs, should be repaid to him; that in pursuance of this arrangement appellee assisted Schlumpf in purchasing the Fizer claim at a discount of approximately $ 500, and, acting as attorney for Schlumpf without fee, filed an intervention for Schlumpf in the foreclosure suit; that in accordance with the agreement Schlumpf became purchaser at the foreclosure sale for $ 3,575, which was almost exactly the amount he paid Fizer, and the balance due Schlumpf on his mortgage and the costs, and received deed from the commissioner; that appellee thereafter continued to occupy the premises, and, as had been agreed upon, made monthly payments to Schlumpf of $ 25 for the first six months, then $ 30 per month for twenty-four months, and thereafter, up to the death of Frank Schlumpf, Sr., for twenty-three months at the rate of $ 40 per month; that Schlumpf died on July 26, 1943, having willed the property to his son, the appellant, H. J. Schlumpf; that after the death of said appellant's father appellee continued to make to said appellant the monthly payments of $ 40 each for twenty-four months; that, relying on the agreement, he had made repairs on the property in December, 1944, at a cost of $ 250; that, though appellee was ready, able and willing to carry out his agreement and pay off the entire balance due by him, said appellant had refused to carry out the agreement; and the prayer of appellee was for a decree ordering specific performance of the said contract. Mrs. Julia Schlumpf, wife of H. J. Schlumpf, was afterwards made defendant.

Appellants' answer was a denial of all allegations of the complaint.

Appellee testified to substantially the facts set up in his complaint. The effect of the testimony of appellants was a denial of any knowledge of the alleged agreement between appellee and the elder Schlumpf. There were shown by the evidence some circumstances tending to support the contention of appellants that appellee, after the foreclosure, remained on the property as tenant, first of the elder Schlumpf and later of the son, and, on the other hand, circumstances were proved which indicated that appellee's version of the matter was true. No witnesses, except the three parties to the suit, the mother of appellant, and the clerk of the probate court, who introduced certain records, testified at the trial.

Appellant, for reversal of the lower court's decree, urges these grounds:

I. That the oral contract relied on by appellee is void as contravening the statute of frauds.

II. That appellee should have been denied relief because he failed to pay or tender the entire mortgage indebtedness.

III. That appellee failed to make any substantial payment, or to pay the taxes and insurance, or to make any substantial improvement on the property.

IV. That the evidence adduced to establish the alleged oral contract did not meet the requirements of law as to oral testimony necessary to prove a trust or agreement as to land.

V. That appellee is barred by laches and estoppel.

I.

It is argued by appellants that since appellee had, in the mortgage to Schlumpf, waived his statutory right to redeem, the alleged oral agreement was in reality one to re-purchase, rather than to redeem, and that therefore was such a contract as under the statute of frauds was required to be in writing.

By § 9473, Pope's Digest, the mortgagor is given the right, where the mortgage is foreclosed by proceeding in chancery court, to redeem within one year from the sale; and this is the privilege which appellee waived in the face of the mortgage. But, in addition to the right of redemption created by said statute, every mortgagor has the right to redeem his property by payment (or by agreement made with the mortgagee) at any time up until the date fixed in the foreclosure decree. In the foreclosure decree involved herein appellee was given thirty days from the date of the decree to pay off the amount adjudged to be due from him. According to the testimony of appellee, the agreement was made with Schlumpf long before the decree was rendered; so that at the time said agreement was made appellee had the unquestioned right to pay off the debt and redeem his property; and therefore the asserted agreement was one to redeem, not to repurchase the property.

In 49 Am. Jur., p. 530, this statement is made: "The question has frequently been presented as to the effect of an oral agreement to enlarge the time for redemption from a sale under a mortgage or other lien on real property, and it has been held in many cases that an oral agreement to permit redemption or to extend the period for redemption after the expiration of the statutory period is not within the statute of frauds, such agreement not being regarded as a contract for the sale of land or a transfer of title thereto, and is therefore binding upon the parties, particularly where such an agreement has been acted on so far that the parties cannot be placed in statu quo."

Dealing with a similar question, the Kentucky Court of Appeals, in the case of Webbs v. Hynes, 9 B. Monroe, 388, 50 Am. Dec. 515, said: "The statute of frauds has no application to a contract of this character, which is not for the sale of land, or the transfer of title thereto, but merely to prolong the time, for the exercise of the right of redemption."

In the case of Turpie v. Lowe, 158 Ind. 314, 62 N.E. 484, the Supreme Court of Indiana said: "An agreement for an extension of the time of redemption, although not in writing, nor supported by any consideration excepting the promise of the redemptioner to pay the amount to become due, with interest, when acted upon by the parties, is not within the statute of frauds."

The Supreme Court of Illinois, in the case of Ogden v. Stevens, 241 Ill. 556, 89 N.E. 741, 132 Am. St. Rep. 237, said: "A verbal agreement to extend the time for redemption from a judicial sale is valid and not affected by the statute of frauds."

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