Turman v. Forrester

• Decision Date: 16 January 1892
• Citation: Turman v. Forrester, 18 S.W. 167, 55 Ark. 336 (Ark. 1892)
• Parties: TURMAN v. FORRESTER
• Court: Arkansas Supreme Court

18 S.W. 167

55 Ark. 336

TURMAN v. FORRESTER

Supreme Court of Arkansas

January 16, 1892

APPEAL from Scott Circuit Court in chancery, JOHN S. LITTLE, Judge.

On August 11, 1884, W. B. Turman conveyed to J. C. Gilbreath, by deed and bill of sale, all of his real and personal property.On September 10 following he executed to Gilbreath his promissory note for $ 9265 due four years from date, and took from him a bond for title or defeasance, conditioned for the re-conveyance of the land upon payment of the notes.In 1885 Gilbreath executed a mortgage of the land to the National Bank of Western Arkansas, which was foreclosed in 1887, and a portion of the lands, sufficient to pay the mortgage debt amounting to $ 6700, was sold.On March 18, 1887, Gilbreath executed a quit-claim deed of all the lands to T. M. Duncan.The latter joins Gilbreath's administrator, J. T Forrester, in this suit upon Turman's note and to foreclose his mortgage, alleging a balance due, after allowing all credits, of $ 4840.

Turman answered that the conveyances of his property were made in pursuance of an agreement whereby Gilbreath assumed to pay all of his debts.The note was for a sum much larger than was really due, because the amount of his debts was unknown, and the note was intended to cover all the debts.The execution of the mortgage by Gilbreath to the bank was without his consent, nor was heparty to the foreclosure proceeding.He claimed credit for a mill and lot sold by Gilbreath for $ 1600.

The court found that the note for $ 9265 was for the purchase price of the lands; that Gilbreath's mortgage to the bank was executed by and with the consent and knowledge of Turman and that Turman was entitled to credit for $ 6700, the amount for which a portion of the lands were sold at the foreclosure sale; that Turman was entitled to credits, in addition to those allowed by the administrator, for $ 1600, the amount of the purchase price of a mill and lot sold by Gilbreath, and $ 100 for money paid Gilbreath for Turman.The court gave judgment in favor. of the administrator for $ 2942.34, and ordered the remaining lands to be sold if the amount was not paid by a certain time.From the decree against him Turman appealed, as did Forrester from the decree allowing Turman credit for $ 1600.

Judgment reversed and cause remanded.

Sanders & Watkins and T. P. Winchester for appellants.

1.The testimony clearly shows that the note does not represent the consideration for the mortgage, and that the true consideration was certain debts to be thereafter paid by Gilbreath, the exact amount of which was not known.The debt secured, the true consideration for the mortgage, may always be explained.1 Jones, Mort., p. 283, and cases cited in note 3.

2.As by the contract the lands may all be redeemed by the payment of a much smaller sum than that named as the purchase price it devolves on appellees to show that the balance of the note is supported by an existing indebtedness.See also1 Jones, Mortg., lastclause, sec. 335 and note;2 id., sec. 1472, and notes.

Clendening, Read & Youmans for appellees.

1.Upon the answer as amended the burden of proof is on the appellant.1 Ark. 228;5 id., 345;ib., 133;11 id., 307; 21 id., 69;35 id., 279;3 So. 422;41 La. An., 671.Appellant's deposition was inadmissible.Mansf.Dig., secs. 285-7.

2.The testimony shows that Turman had knowledge of the mortgage to the bank and ratified its execution.The proceeds of the sale were a proper credit on the note.

3.As to the sale of the mill sold to Pennington, the notes were never paid; the mill was burned; the maker is insolvent.One security was substituted for another, and the estate of Gilbreath should not be charged with the amount of the sale until collected.

OPINION

HEMINGWAY, J.

Turman contends that the court erred in its finding that his note referred to in the bond for title fixed the amount of his mortgage debt, and that it erred further in applying as a credit upon said note a sum on account of that part of the mortgaged property subsequently mortgaged by Gilbreath to the bank; while Gilbreath's administrator contends that the court erred in crediting upon said debt the sum for which a mill site and mill, being a part of the mortgaged property, was sold, the same being unpaid and the purchaser being insolvent.Both parties have appealed, and the court's action with reference to the matters stated is before us for determination.

In order to more easily determine those questions, it would be well to define the character of the transactions between Turman and Gilbreath of the 11th of August and 10th of September, 1884.In the light of Turman's evidence, which is conceded by counsel to be properly before us, we think it manifest that an absolute conveyance from Turman to Gilbreath was never contemplated by them.Turman had no money but large property, and was being pressed by his creditors, who had, to a large extent, reduced their claims to judgments.Gilbreath had agreed with him to pay his debts and save his property from sale; and in consideration of this promise, and, in order to secure to...