ARK.] EVANS V. -ROBERTSON. 419: • EVANS v. ROBERTSON. Opinion delivered.Nlay 28,1928. 1. MORTGAGESRIGHT TO REDEEM . L —Wheie a Wife', having homestead and dower rights hi lands,'With her husband conveyed her interest to one agreeing to reconVeYto the'husband or his assigns at any time within a year on 'repnyment of a sum loaned to the grantee, she was entitled ,to redeem' the property within such time by paying the sum required, where .the, agreement to reconvey :created a mortgage or . a conditional sale, especially when_ it : became aPpirent_ that . ' her husband would . .not • redeeti4 the boine'atead., ' MORTGAGES-riI6HT TO IIEDEEM—PHRCHASHR WITH 'HOTICE.=The right Of a 'Married woman to' redeeth dower' and h6iii'este'ad land' • under a deed by her husband 'and herself by Which , a' -right .05 • redeem by payment of a loan to.the : grantee was resCrved was:not .destroyed by, - the grantee , conveying to onO mho ;took ;Inr ith notice.
420 EVANS V. ROBERTSON. [177 Appeal from Benton Chancery Court; Lee Seamster, Chancellor ; affirmed. Duty d Duty, for appellant. Rice & Dickson, for appellee. SMITF1 -, J On-April 4, 1925, J. A. Robertson owned certain lots in the city of Rogers; on whiCh his residence, stood- and in which he resided with this . wife, Zeva. Rob-ertson, and their *infant son. TheY were in debt on the Place to the extent of about seven hundred dollars, and apfllied to Ira D. Swearingen for a lOan of that amount to discharge the indebtedness. Swearingen declined to Make the loan, for the reason that he was unwilling to incui the expense of a possible foreclosure, but he agreed to• take a warranty deed to the property and to execute an agreement to reconvey it at any time within one year after the date of the deed for a . consideration of $770. Thls arrangement was consummated, and Robertson and his - wife' exeCuted and delivered to SWearingen a warranty deed conyeying the property to : him, and he, at the time : of the •delivery of the deed, executed the following contract: "This agreement certifies that Ira D. Swearingen agrees and binds himself to convey to J. A. Robertson, Jr., or his assigns, the following described lands in Ben-ton County, Arkansas, to-wit (describing lots), at any time within one year from this date, providing the said J. A. Robertson, or his assigns, shall p g y to the said-Ira D. Swearingen during said time the sum of $770. "Time is made the essence of this agreement. "This 4th day . of April, 1925. "J. A. Robertson, Jr. i `Zeva Robertson. "'Accepted Ira D. Swearingen." Robertson was addicted tothe- excessive use of intoxicating liquors, and before the expiration of the year became almost non compos- nientis, and suffered from delirium tremens, and so deported himself that his wife was compelled to leave their home and return to that of her father. She did this because she and her father
ARK.] EVANS V. ROBERTSON. 421 thought it unsafe for her to live with her hnsband. Rob-ertson's . condition was Such that it became certain that' he could, not and . would not redeem the proPerty, and Mrs. Robertson's father, acting for her and . in her behalf,. applied to SWearingen to redeeth the propertY, and offered to pay the $770 for a deed. This offer : Was made, before • the expiration of the year. - Robertson appeared to be much under the influence of appellant _Evans, who, from 'time to time, loaned .him small sums .ef money and sold him merchandiSe out Of his store : on: credit: . - Evans . knew -that Mrs. Robertson was negotiating for the redemptidn of -the lots; and she knew that i 'he' also .conteraplated purChasing them, and she offered .to permit him to buy the property, .whiCh was. worth from seventeen hundred to two thonsand dollars; a provided he would pay her $500, and she testified that .she would not agree for Evans to buy the propertY unless he .would PaY her that amOunt of money; but this he deClined to do. One year to a day after the.date of the deed.and the contract to reconvey,• Swearingen . executed a deed to. Evans for the property. Swearingen testified . that Mrs.. Robertson's father came t , o . see him about redeeming the property, and .‘ that he woutd. have permitted her , to do so but, about the time the 'contract matured, Robert o s n told him to , make the deed to. Evans, who was Robertson's "assigns." Witness examined his contract,..and . saw that it read that he should Teconvey . the property to .Robert-son..or his assigns, and he therefore . conveyed -the. prop:, erty to Evans, who paid him $770 in cash for a deed. The contract to reconvey had not: been assigned to Evans by Robertson. Witness at first declined to ec .ecute a, deed; to Evans, but, when his attention was .called to the lan7 gilage- of the contract, he made a deed . as : directed by Robertson, because he . th ` ought his contract.reqUired - him. fo . do so. • • • . After executing the deed, Swearingen, on Aprit wrote appellee's .father the- following letter ;
492 EVANS -V._ . ROBERTSON.: 1171 • ' Dear friend:. Rebertsen paid me,• and as . bur cont tract read Robertson,: Jr.; :or his assignS,'•:he.made, me make the deed to' a man named Evans as his assign. I did not know • that was in the'contract until today. "P. . S. Am awfully sorry, that it. *as, in the contract that way." - - • It was shown that Evans-borrowed, the money with which he purchased the lots, and as security therefor executed a mortgage on . the, lots. , Robertson died . in June, 1926, and on July . 1, 1926, Mrs. Robertson and her, infant son brOught this suit, and alleged that . the money : procured from SWearingen was a loan, and . that the: deed executed to him was in fact a mortgage, and ;that Robertsonhad procured ihe execution of . the deed .IO, Evans for the purpose of defeating the dower rights of his wife and the homestead rights of herself and their infant child.. . • • Evans, filed an t answer, alleging that, the , conveyance to Swearingen was in fact a deed, as it purported to be; and that the contract executed at the time of the delivery Of thodeed Was a mere 'agreement te reconvey *Rhin one year, and that:tithe Ava.§ made of the esSence Of the contraCt to recoriVey, and the 'right tO rePurchase was not exercised vathin. the time limited.' - The ethirt eXpressly found the fact to be that EVans was nOt an innocent purchaSer, arid the testimonk appears to abundantly''Support that' finding.' The court frirther foithd °that 'the deed *as 'in fact a mortgage, and that it was executed to secure 4 loan'of $760, and it was decreed that the right" of rederription. exiSted arid might be exercised by plaintiffs Paying $770 of the money which Evans had borrowed frOm a third party to pay Swearingen, and fo VhOffi he had 'giiieri'a Mortgage; With inteieS1 ateight per cent. to date; and this apPeal is . from that deeree. . , Appellant earnestly inSistS, upon the autherity .of the' Case of Has'v. 75 'Ark. 551,S7 S. W. 10,27, that the deed from Robertson and wife to Swearingen was an. absolute conveyance in Consideration of 1700 paid them, and. riot a mere security for a loan for that
ARK.] EVANS '4) . ROBERTS6N. 423 amount, •'and that the ..agreement to . ie.ConveY 'within a year did not Create a-mortgage, but Was a conditional sale, Which becaine absolute iipon`the eXpiration of the.year. ; We think the decree was not•an erroneous one, even though appellants were correct in the contention stated (a point we donot decide), for the reason that Mrs. Rob-ertson had a very substantial .interest in the property if it were redeemed, to-wit, that of dower and homestead, and she regarded that right as of sufficient value to warrant her in redeeming the lots by paying the sum required for that purpoSe: 'Within'the time limited for that purpose her father, !as her agent in her behalf, offered to redeem the property, and would have done so had 5wearingen not miSednceived it'to be his onty; under his contract, to convey, the., pioperty to Robertson's "assigns." All parties knew, when Swearingeii executed his deed to Evans, that Robertson 'could not and would not effecta.' redemptiOn -of the lots. 'Robertson and his wife were not divorced, and she had left his hothe only because her husband's . miSCondact . had . tnade it uriSafe for her and her : child to live there.' Nei' lights' Of: homestead and doWer subsisted„ andtO prOtect, these rights..She was entitled to redeem the . property, and,.especially so .when it. becanke apparent that her.)husband would not exerciSe the right of redemption., . .," .. • At § 299 of the chapter on Mortgages, in 19 R. C. L., .page 503," it" is said that the "equitable right to redeem a' mortgage, .after breaeb of cOnditiOn;eitendabeyorid the mOrtgagor to all who . elaith :through Or under . -him, and that a right of hOmestead gives the privilege . of redemption. The' cases collected in" the annotator's note to the ease of Mackenna . v.' Fidelity Trust Co., 6 A. & R. Ann. Cases' 47.1,: citedin the note to"the . above text, lullY sustain the text. • NoW, althOugh -the •agreement between Robertson and wife and Swearingen'may : have constituted: a conditional sale, and . not atnortgage,. there Was .. a 'contractual right to redeem within' a yea.r i and. the holder of whom& stead right was entitled to exerciSe that right The
424 [177 Mterposition of Evans, who, as the court found, was not an innocent purchaser, defeated the attempt to exercise this right, and the court below was correct therefore in holding that the right of redemption . had not been destroyed. . • The decree of the court below is correct, and is '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.