Johnson v. Graham Bros. , 1911 Ark. LEXIS 130 ( 1911 )

Wood, J.,

(after stating the facts). 1. In Beal & Doyle Dry Goods Co. v. Barton, 80 Ark. 326, it is held that “a note or agreement whose consideration is the prevention or dismissal of a criminal prosecution is void, even though the amount represents a debt due the payee.” Therefore the only question here is whether or not the note and deed of trust in controversy were executed by appellant upon an agreement with those representing the Graham Bros. Company that the indictments pending in the Jackson Circuit Court against her husband should be dismissed. If such was the understanding, the note and deed of trust were void, regardless of whether the indictments were dismissed or not, or whether the appellant or her husband were indebted to Graham Bros. Company. For all such agreements are contrary to public policy and void. Rogers v. Blythe, 51 Ark. 519; Kirkland v. Benjamin, 67 Ark. 480.

The question is purely one of fact, and we have set out, somewhat in detail, the testimony bearing upon it. We are of the opinion that the finding of the chancery court is according to the preponderance of the evidence. George W.- Murphy, attorney for appellant, who conducted the negotiations for her resulting in the consent decree and the execution of the note and mortgage, stated that “we agreed that the plaintiffs (appellees) take the farm back at a certain price, deed -her back the town lots, and advance her about twelve hundred dollars, and that she should execute them a mortgage for $6,000 on the town lots, payable in two years, provided the interest was paid.” He further says: “In my conversation with these parties I did not require as a condition of the compromise that they agree with me to dismiss the indictments or have them dismissed. I did not purport to make that a condition of the settlement.”

The testimony of those who conducted the negotiations on the part of Graham Brothers and Graham Bros. Company is to the effect that no promise was "made by them to have the indictments dismissed as a condition or consideration upon which appellant signed the note and deed of trust, and four persons of the six who were present when the note and deed of trust were delivered testified that no promise to dismiss the indictments against R. M. Johnson was exacted as a condition of the delivery of these instruments. Since an agreement of .that nature is illegal, and, if made, would have rendered the contract and the instruments evidencing it invalid, it is unreasonable to conclude that learned attorneys who were conducting the negotiations for their respective clients would have entered upon such an agreement. It was most natural, however, that the wife should have had a supreme desire to procure the dismissal of the indictments against her husband. Doubtless, it was this “paramount issue” dominating her thoughts that led her honestly to believe that she had exacted a promise to dismiss the indictments as a condition for her signing the note and deed of trust, when, in reality, she had not done so. We are convinced that no such consideration was the basis, in whole or in part, for the note and deed of trust in suit.

2. All the testimony tending to prove that the dismissal of the indictments was the consideration for the deed or mortgage in the former suit was incompetent, and can not be considered here, for it was adjudicated in the former suit that the mortgage was valid, and that Graham Brothers, joint tenants, acquired absolute title thereunder to the lots in controversy. Graham Bros, Company, the corporation, is privy to the Graham Brothers, joint tenants. The appellant is estopped to deny the effect of the former judgment in this collateral proceeding.

3. The note and mortgage here, according to the preponderance of the evidence, were concerning property which appellant purchased and to which she acquired title in her own right. The debt therefore was one for which she could mortgage her separate estate. Kirby’s Dig. § 5213. But, even if it had been •her husband’s debt, she could have mortgaged her separate property to secure it. Scott v. Ward, 35 Ark. 480.

4. The acknowledgment of the mortgage was in due form. Robinson v. Wilcoxson, 36 Ark. 355; Stone v. Stone, 43 Ark. 160.

But it would have been a valid conveyance between the parties although not acknowledged at all. Criscoe v. Hambrick, 47 Ark. 235.

Affirmed.

Kirby, J., dissents.