Ribelin v. Loyd , 148 Ark. 487 ( 1921 )

Hart, J.

(after stating the facts). The judgment was correct. The only disputed question of fact was whether or not appellees turned over the three hogs in controversy to appellants in part satisfaction of their mortgage indebtedness. This was a disputed question of fact, which the jury settled in favor of appellees.

It is contended, however, by appellants that the release was a conditional one, and that appellees, not having used the hogs for meat, and not having made the crop in 1920, as they had agreed to do, the release is of no avail to them.

We can not agree with counsel in this contention. A mortgage is a mere security for a debt, and the property may be released from the mortgage by parol agreement, as well as by a written one. Fincher v. Bennett, 94 Ark. 165, and Horton v. Thompson, 124 Ark. 545.

The release in question by its terms is an absolute one. It is true that it recites that the three hogs are released from Loyd’s mortgage for his use for meat hogs. The lattter part of the release, however, is a mere declaration of the use to which the hogs are to be put, and does not in any sense change the release from an absolute one to a conditional one. To have that effect, language must have been used from which the conclusion that the release was a conditional one could have been drawn.

Again, it is contended that there is no consideration for the execution of the release. This contention is based upon the fact that Loyd gave to Ribelin a mortgage on the land from which he derived the profit of $95 for the initial payment. This did not make any difference. The mortgage was a mere security for the payment of the indebtedness, and this was satisfied when the land was sold. The substance of the transaction was that Loyd made $95 profit in the purchase and sale of the land, and ftibelin agreed to release the three hogs from the mortgage indebtedness if Loyd would let him have the $95. This was a sufficient consideration for the execution of the release, and the court did not err in treating it as an absolute release of the hogs.

It follows that the judgment must be affirmed.