Watkins v. Greer
Decision Date | 29 June 1889 |
Parties | WATKINS v. GREER |
Court | Arkansas Supreme Court |
Decree affirmed.
APPEAL from Jefferson Circuit Court in Chancery, JOHN A. WILLIAMS Judge.
Watkins and wife filed their complaint against Greer, alleging that the instrument copied in the opinion created a mortgage, and praying for an account of rents and for redemption. The court below dismissed the complaint for want of equity, and the plaintiff appealed.
J. W House, for appellant.
The instrument was a mortgage. The law regards the substance of things and not their forms or shadows. 104 Pa. 136; 94 Ind 76; 15 Wisc., 666; 22 id., 465; 58 id., 434; 1 Murphy (N C.), 116; 70 Ill. 416; 55 Pa. 311; 3 W. & S., 384; 41 Ill. 522; 1 Paige (N. Y.), Ch. 56. It shows upon its face that it is a mortgage, intended to secure the payment of indebtedness mentioned therein. It has all the ingredients of a mortgage. Greer held the land in trust as a security for the payment of the debts mentioned. 24 Hun., 451; 60 Pa. 187; Walk. Chy., 110; 5 John. Chy. (Mich.), 435; 17 Beav., 1; 42 Pa. 518. Once a mortgage, always a mortgage. 2 Root (N. C.), 279; 1 Jones on Mortg., sec. 242; 2 Cow. (N. Y.), 324; 2 Col. 89; 18 Peck., 540; 23 Ill. 648; 32 id., 475; 62 Mo. 202; 1 Wend., 433; 3 id., 208; 46 Pa. 331; 55 id., 311; 12 Wis. 499; 9 Wheat, 489; 68 N.Y. 499; 82 N.Y. 385; 32 Me. 141; 3 Jones Eq. (N. C.), 427; 27 Vt. 589; 41 Ill. 522; 23 Ark. 479.
The first clause provides that Greer may sell the lands, and after paying the debts, the surplus is to be paid to Mrs. Watkins. This is a mortgage. 19 Vt. 9; 3 Barb. (N. Y.), 152; 1 Jones on Mortg., sec. 271 and note 5, and 248; 2 Washburn, 55, 56; 5 McLean, C. C., 281; 6 Dana (Ky.), 473; 30 Ind. 495; 3 Watts (Pa.), 188; 6 Pa. 390; 31 id., 295; ib., 138; 5 Mass. 109; 70 Ill. 416.
On payment of the debts the land would have reverted to Mrs. Watkins without a conveyance. 2 Dev. Eq. (N. C.), 470; 18 Pick. 299; 4 Allen (Mass.), 417; 2 J. J. Marsh. (Ky.), 113; 4 Cal. 97; 18 Ill. 578; 3 Watts (Pa.), 118; 11 Mich. 538. 21 Minn. 520; 22 Mo. 79; 38 Mo. 349; 47 Mo. 543; 17 Sarg. & R. (Pa.), 70; 24 Tex. 17; 8 Gray (Mass.), 505; 5 Mass. 109; 22 Ind. 427; 34 Vt. 166; 18 Iowa 576; 49 Iowa 487; 49 Wisc., 697; 90 Ill. 245.
Being a mortgage, an attempt to limit the period of redemption to one year was void. The equity of redemption cannot be thus limited. This clause meant simply that if a sale was not had, or the debts paid within a year, Greer had the right to foreclose his lien in the courts, as under any other mortgage. 7 Johns. Ch., 39; 1 Saxton Ch. (N. J.), 534; 11 Minn. 22; 13 Wisc., 264; 6 Watts. (Pa.), 405; 2 Dev. Eq. (N. C.), 470; 3 Watts. (Pa.), 118; 1 Randolph (Va.), 258; 6 Tex. 294; 3 Sand. Ch., 492; 47 Am. Rep., 551; 7 Vesey, 273; 23 Ill. 648; Busb. Eq. (N. C.), 88; 37 Ill. 216; 6 Pa. 390; 7 Watts. (Pa.), 261; 21 Mo. 325; 65 N.C. 520; 16 Sarg. & R. (Pa.), 361; 4 W.Va. 4; 14 Wisc., 453; 44 Wisc., 408; 109 Mass. 130; 64 Pa. 319; 3 Watts & S. (Pa.), 384; 9 S. & R. (Pa.), 434; 5 Mich. 231; 18 Pick. 299; 4 Allen (Mass.), 417; 2 J. J. Marsh. (Ky.), 113; 4 Col. 97; 18 Ill. 578; 5 Miss. 317; 2 Cow., 324; 16 Ala. 472; 7 Watts (Pa.), 372; 4 Sneed (Tenn.), 415; 18 N.J.Eq. 358; 39 Me. 110; 5 Gray (Mass.), 505; 1 Allen (Mass.), 107; 26 Conn. 213; 42 Ill. 453; 22 Pick. 526; 13 Vt. 341; 22 Kan. 661; 59 Tex. 423; 3 Pick. 484; 55 Cal. 352; 42 Cal. 169; 1 Sand. Chy., 56; 7 Ark. 505; Pom. Eq. Jur., vol. 3, sec. 1195; 1 Jones' Mortg., 265; Tiedeman on Real Estate, secs. 304-5.
The whole transaction was merged in this agreement, and its sole object was to secure Greer in the payment of the several demands mentioned. 29 Gratt., 35; 24 Cal. 385; 92 Ind. 49; 7 N.J.Eq. 27; 33 id., 143; 24 id., 397.
If a mortgage or redeemable estate, parol testimony is inadmissible to contradict it. But if it is not a mortgage on its face, then parol testimony may be introduced to show the real intention of the parties. 37 Ill. 216; 6 Pa. 390; 6 Watts, 130; 31 Pa. 131; 22 Pa. 171; 5 Binney (Pa.), 499; 3 Pom. Eq. Jur., sec. 1195.
The testimony clearly shows the instrument a security for a debt, and Watkins had a right to redeem until barred by the statute of limitation. 67 Pa. 96; 3 Watts & S. (Pa.), 384; 77 Am. Dec., 658; 64 Pa. 315.
U. M. & G. B. Rose, for appellee.
1. The testimony of the lawyers to show what the contract meant, there being no charge of any mistake or ambiguity, was clearly inadmissible for any purpose. 1 Pet., 1; 41 Ark. 499; 46 id., 174; 1 Jones Mortg., sec. 96.
2. When there is reasonable doubt on the face of a writing, whether it be a mortgage or not, it is held a mortgage (38 Ark. 213; 13 id., 115), but one cannot take a plain instrument, throw doubt on it by parol evidence, and then say it must be held a mortgage. 1 Jones on Mortg., sec. 335; 40 Ark. 149; 19 Ark. 278; 31 id., 163; 23 id., 212.
3. The following cases in our own Reports are decisive of this case: 3 Ark. 366; 5 id., 340; 38 id., 264; 34 id., 666. See, also, 1 Russ. & M., 506; 2 Edw. Chy., 139; 8 Paige, 243.
M. L. Bell and Hemingway & Austin, for appellee.
The whole matter was a mere gratuity on Greer's part, and simply meant as it reads, that if the place could be sold in a year for more than the amount of Watkins' indebtedness, the surplus should be paid to Watkins. It was not a mortgage and was not so intended by either party; nor did it create a trust. 34 Ark. 665, and authorities cited by co-counsel, W. R. Coody.
W. R. Coody, also for appellee.
1. What this instrument is must be gathered from its language and stipulations as a whole, according to the intent of the parties as gathered from the entire instrument. 3 Ark. 225; 13 id., 125. Parol evidence not admissible to alter, vary, change or explain a written instrument. 4 Ark. 179; Baker v. Turner, 30 Ark.; 13 id., 592; 16 id., 519; 20 id., 293; 21 id., 69; 15 id., 543.
2. It cannot be contradicted by a pretended reformation. Courts only reform contracts when there is mutual mistake. They do not make new contracts. 26 Ark. 28; 1 Story Eq., secs. 155, 156; 2 Lead. Cas. Eq., part 1, pp. 981, 982, 983; 8 Rep., 175, 176, 177; Rector v. Collins, 45 Ark. 5; 1 Story Eq., 164, 165, 166.
3. Parol evidence not admissible to establish a trust. Mansf. Dig., sec. 3382; Perry on Trusts, sec. 75.
4. It is not a mortgage, because it contains none of the elements of a mortgage--no mortgagor or mortgagee. 1 Jones Mortg., secs. 11 to 16; 18 Ark. 85, 170--something conveyed, 37 Ark. 312; 1 Jones Mortg., sec. 136; no debt to be secured. Jones on Mortg., secs. 69, 70, 343 to 346.
It is not a trust. Perry, secs. 1, 2, 9, 799, 828, etc.; 41 Ark. 400; 15 id., 312; 19 id., 51; 21 id., 539.
6. Mrs. Watkins was only entitled to the surplus in case of a sale within the year. This created no lien. 37 Ark. 516; 39 id., 385. See, also, 113 U.S. 676; 34 Ark. 365.
7. While in many of its provisions it resembles a conditional sale, with power to repurchase within a year, it is wanting in several of the necessary elements of such a sale; because, (first) Watkins had no interest in the land to convey; (second) there was no agreement to reconvey, nor could it revert to them under any circumstances. Jones Mortg., secs. 267 to 276 and 331; Rose Dig., p., 540; 8 Paige, 243.
8. The contract speaks for itself, that, if a sale could be made within a year, all over $ 18,000 was to be paid to Mrs. Watkins.
9. There was no consideration for the agreement--it was a mere gratuity. 1 Pars. Cont., pp. 429, 436, 450; 34 Ark. 303. No mutuality. 4 Ark. 252; 24 id., 52; 42 id., 243; 38 id., 58 to 71.
The decision of this case involves the correct construction of the following agreement, executed February 27, 1878:
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