942 MITCHELL V. DAY. [193
MITCHELL V. DAY. 4-4597 Opinion delivered April 12, 1937. BILLS AND NOTES—SPECIFIC PERFORMANCE OF CONTRACT.—In action on note for $983.63, a contention that plaintiff should be required to carry out his agreement to loan defendant $2,000 before he should ask anything of defendant could not be sustained where plaintiff offered to carry out his agreement, but his offer was declined. 2. BILLs AND NOTES—USURY AS A DEFENSE.—In action on promissory note, the defense of usury could not be sustained where the usurious contract was never consummated, and the action was brought only for the money furnished defendant. Appeal from Randolph Chancery Court ; A. S. Irby, Chancellor ; affirmed. W. E. Beloate, Sr., and W. P. Smith, for appellant. W. J. Schoonover and Trieber ,ce Pope, for appellee. BUTLER, J. Earl Day, plaintiff in the court below, brought suit to recover judgment against the defendant, - Mrs. Naomi Surridge Mitchell for the sum of $983.63 and for foreclosure of the mortgage given to secure the indebtedness on certain lands situated in Randolph county. Defendant answered, denying the alleged indebtedness, and, answering further, alleged a certain contract between -herself arid plaintiff by which he was to lend her the sum of $2,000 ; that she tendered to the plaintiff her note for that amount and a mortgage securing same, together with a deed to a tract of land, known as the Munday farm, which had been executed in consideration of the expected loan of $2,000; that plaintiff kept the note and mortgage and declined the deed, and refused to carry out his contract as agreed and abandoned and repudiated the same. She further defended on the ground that the contract was usurious in that as a bonus for the loan, in excess of 8 per cent. interest, she conveyed to plaintiff the Munday farm, containing 400 acres of land. She prayed that the mortgage and notes be canceled and set aside. The chancery court found in favor of the plaintiff, awarded judgment for the sum sued for, and decreed a foreclosure of the mortgage.
ARK.] MITCHELL V. DAY. 943 We think the decree not against. the preponderance of the evidence which tended to establish the followhig facts : Mrs. Fannie Mitchell was' the mother and agent of Mrs. Naomi Surridge Mitchell. The lands involved in this litigation—and perhaps others—had become delinquent for unpaid general taxes and local improvement assessments. In conversation with plaintiff, .defendant told him that she had to have some money to pay her taxes and did not know where to get it, and said that it would amount to about $2,000. Plaintiff offered to secure the money for her, if he could. Later on he was contacted by Oscar Prince, a tenant, .who had been residing on the lands for a number of years during which time be had dealt with Mrs. Fannie Mitchell, defendant's mother, as his landlord. Prince advised the plaintiff that the time for redemption would soon terminate and the lands would be conveyed to the state. He asked plaintiff to go with him to see Mrs. Fannie Mitchell about it. Accordingly, they went to see her and there, according to her statement, plaintiff said, "We will go over there (meaning Pocahontas, the county seat) and get these taxes fixed up, and then, if Naomi will give me a mortgage on this land and deed me the Munday farm, I will lend ber the money." Immediately following this conversation, plaintiff, accompanied by Mrs. Fannie Mitchell and - Prince, went to Pocahontas where thd amouut of the general tax delinquent was ascertained to be $983.63. This amount plaintiff paid, obtaining certificate of • redemption :which he then and there delivered to Mrs. Fannie Mitchell. Relative to the Munday farm, it appears that the land was of doubtful value, that quite a sum waS due thereon for delinquent taxes that Mrs. Mitchell intended to abandon it and offered to deed it to plaintiff. Shortly after this, plaintiff went to Little Rock, the home of defendant, where a note for $2,000 and mortgage securing it were executed. During the course of the preparation of the note and mortgage, however, plaintiff was informed by his attorney that the deed which had been recently executed by Mrs. Fannie Mitchell to defendant conveyed only ; an estate for the life of Mrs.• Fannie Mitchell and that defendant's only other title to the land was a re-
944 MrICHELL V. DAY. [193 mainder contingent upon her surviving her Mother. It was then agreed that in addition to , the mortgage- defendant would procure a policy -of- insurance in the sum of $2,000 and assign the same to : the,plaintiff.' This poli6y was obtained, but was never assigned . -to plaintiff, doubtless . for the . following reason . : When plaintiff left Little Rock, Prince took • charge of the• note- and mortgage and delivered them to Mrs. Fannie Mitcha, to keep until the balance of the $2,000 was procured and paid oVer. When plaintiff returned to Mrs. -Mitehell's'•on the' following morning to -complete tbe• transactibir, .he . was informed, arid upon. inVestigation fOund it to be 'true, that large' per, sonal judgments had been , rendered against . Mrs. Fannie Mitchell and that a suit -Was- pending to set aside the Conveyance from • MrS. Fannie Mitchell' td slier daughter; Naomi, as in fraud of creditors:Plaintiff' then endeavored tO • secure a return of .the money he had already paid out and aPplied to.the clerk • for that Purpese, who.informed him that a refund perhaps might be secured if :the -certificates of redemption were .surrendered. Plaintiff.went to Mrs. Famiie Mitchell and requested the redemptiori certificates which she refused' to' deliver. He then requested a delivery of the note 'and mortgage arid at the time returned the deed to thriMunday farm, stating that it waSn't worth anything and be didn't Want it- FinallY, Mrs. Mitchell; on the advice of-her attorney, delivered the note and mortgage to. plaintiff who :had.the mortgage recorded; -The date on which the not& and Mortgage Were giveri'was. the 14th' day of Jrine, .1932: About .two•yearS later the suits to cancel . .defendant's deed given . her by her mother were disposed of favorably.,to her and an attorney, acting for. plaintiff, on June . ,28 i. , 1934, advised defendant of. the termination, of litigation , and , that plain, tiff was then ready to complete. the contract as agreed upon . in 1932. . Defendant answered, , for several .reasons declining to complete the contract, ;and. advisii-ig that the only money or property that would ever be gotten out of her was when the courts . so adjudged. This snit followed. • . It is contended -by defendant, on appeal, 'that plaintiff should be required to Carry out the contract as made •
ARK.] 945 before he can be in a position to ask anything against the defendant. The fact is overlooked that as soon as the suit seeking' to cancel defendant's deed . was terminated favorably 'to her,, plaintiff offered to carry out his contract and . this offer . Was declined. Defendant further contends that' the' proof in this case has• made' out ' an nsurious contract Under *the statute and decisions of this cOnrt. ThiS contention is not tenable as the . contract"was neVer eonsunitnated and plaintiff is not seeking to recover under it, but only for the money furnished defendant ut her :need .secured • by the mortgage which, was voluntarily delivered to plaintiff after the „ contract 0 rst Contemplated was •abandoned. The decree will, therefore, , be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.