State v. Dupuy

• Citation: 11 S.W. 964,52 Ark. 48
• Parties: STATE v. DUPUY
• Decision Date: 22 June 1889
• Court: Supreme Court of Arkansas

11 S.W. 964

52 Ark. 48

STATE v. DUPUY

Supreme Court of Arkansas

June 22, 1889

APPEAL from Lee Circuit Court, M. T. SANDERS, Judge.

Judgment affirmed.

J. C Tappan and J. J. Hornor, for appellant.

1. Deeds are to be construed so as to render them operative, if possible. 6 Ark. 109. Every instrument intended (as was this) as security for a debt, although absolute on its face, will be construed to be intended as a mortgage, and parol testimony is admissible to establish the fact. 5 Ark. 321; 7 id., 505; 13 id., 112; 18 id., 34; 15 id., 284.

Wherever there is a debt and a conveyance to secure same, the policy of the law is to constitute it a mortgage. 2 Story Com., 287.

The instrument was a mortgage or deed of trust in the nature of a mortgage. It had none of the elements of an assignment. 4 N.Y. 211; 21 N.Y. 131; 31 Ark. 429.

E. D Robertson, for appellee.

37 Ark 151, and 39 Ark. 66, are conclusive of this case. See 1 F. 768.

OPINION

SANDELS, J.

Suit by appellant against Sheriff and his bondsmen, for damages alleged to have been sustained in the seizure of certain goods by the Sheriff.

The only question was as to the character of an instrument of conveyance from one Foster to West.

Assignment:

For benefit of creditors: Instrument constituting.

The deed executed by Foster to West recited the parties, being Thomas Foster of the one part, N. Straub and Henry Lohman and D. C. Smith of the second part, and P. C. West, as trustee for said Straub & Lohman, and D. C. Smith of the third part; described the debt due to Straub individually, the debt due to the firm of Straub & Lohman, and the debt due to Smith; the desire of Foster to secure the payment of the same and then conveyed in consideration of ten dollars then received, to said West, "all the stock of merchandise, consisting of dry goods, groceries, boots, shoes, hardware, hats, caps, and other such articles usually kept in a country store, now in the store-house of said Thomas Foster, in the Town of LaGrange, in the County of Lee and State of Arkansas, an inventory and schedule of which is hereto attached, marked No. 1, and made part of this deed as if copied 'herein' to be held by said West in trust, that he should take immediate possession and sell said goods at private sale for thirty days for cash, at not less than the cost price of same in said store; then, if said goods were not all sold, to sell at public auction, and with the proceeds of sale to pay first all expenses, then said debts, and the balance to pay over to said Foster, said West to have the power to appoint suitable assistants, to possess said goods and to make sale of same. And in the event of his death, refusal to act, neglect or inability, the said second party had power to appoint another trustee, who should have all the powers therein...