Williams v. Prioleau , 123 Ark. 156 ( 1916 )

Kirby, J.,

(after stating the facts). The undisputed testimony shows that the instrument as executed by Grabe Williams and Lincy Ann Williams is in form a warranty deed, conveying the lands in controversy, but after a consideration of the whole testimony, which we do not regard altogether clear and convincing, we are unable to say that the chancellor’s finding that the instrument executed was only intended as a mortgage and security, is dearly against the preponderance of the testimony.

(1) No error was committed in denying the plea of res adjudicata, since the former suit was an action of unlawful detainer in which the title to the premises could not be adjudicated. Prioleau v. Williams, 104 Ark. 322; Kirby’s Digest, section 3648.

(2) The statute of limitations could not avail against the indebtedness held to be secured by the mortgage, in form a deed, even if the testimony had shown that sufficient time had expired to bar the claim. Appellants were asking equitable relief and that an instrument in form a deed be dedared to be a mortgage only for the security of certain indebtedness, instead of the conveyance of the title to the lands, and were bound to do equity, and the court would not intervene to declare such instrument a mortgage and then hold that it did not constitute a lien on the land for the debt it was given to secure, on account of the statute of limitations. In other words, as said in Sturdivant v. McCorley, 83 Ark. 278, 11 L. R. A. (N. S.) 825, “The statute of limitations as to mortgages does not apply to equitable mortgages of this kind evidenced by absolute deeds without any written defeasance. ’ ’

(3) The objection that the testimony of Prioleau is incompetent as relating to transactions with deceased G-abe Williams is without merit, the suit not being against the executor or administrator of his estate. Section 3093, Kirby’s Digest; Bird v. Jones, 37 Ark. 200; Mosley v. Mohawk Lbr. Co., 122 Ark. 227.

(4) It is strenuously urged that the court erred in holding the lands security under the mortgage for the amount of the attorney’s fees and costs of the suit brought for an accounting and ascertainment of the amounts due under the mortgages from Williams to Baum, etc., none of which were satisfied of record, in view of the “assumption of any valid mortgages now on record, ’ ’ as part of the consideration for the execution of the instrument. The different mortgages from Williams to Baum aggregated an amount of more than $3,000 and there was in addition a deed of trust to secure notes amounting to $800 to the American Freehold Mortgage Co. and the record also showed a deed'of trust from Baum and wife to Storthz, to secure a thousand dollars. Appellee was only bound to pay the amount secured by valid mortgages existing against the lands in addition to the debt in the said mortgage, but the instrument held to be a mortgage charged the lands with a lien for such payment, and it was to the interest of appellants to reduce the lien of all of said mortgages to the amount that was justly due thereunder and the chancellor correctly held the lands subject to a lien for the payment of. the cost of ascertaining said sum, as well as the amount thereof.

Appellee had not assumed the payment of the mortgages to Baum or his trustee and having agreed with Williams to assume the payment of valid mortgages against the land we see no merit in the objection that the suits to determine the amount due under such mortgages were brought in the name of Williams, the grantor in the instrument or conveyance to appellee. 30 Cyc: 50.

After a careful consideration of the whole record, we find no prejudicial error therein and the decree is affirmed.