MCCARRON v. CASSIDY. VOL. 12 will not be allowed if taken, for the first time, this court on appeal—such objection should be. made at the hearing in the court below. Parol testimony is admissible to prove that a deed, absolute on Its face, was intended as a mortgage, and as a sreurity for a loan or debt (7 Ark. 505; 1 Ark. 119). A mortgagee in posses-ion, without special authority, will only be allowed for such improvements as are absolutely necessary for the support of the property, and to kerp it from waste and damage. Appeal from the Circuit Court of Se-bastian County in Chancery. THE HON. FELIX J. BATSON, Circuit Judge. Fowler, for the appellant. Ben. T. Duval and William Walker for appellee. *HANLY, J. This was a bill [*35. filed by the appellee, against the appellant and one Mitchell Sparks, in the Sebastian circuit court, on the 17th Oc-tober, 1851, alleging, as far as it is material to notice, that on the 2a January, 1847, he was seized and possessed of two certain lots in the town of Fort Smith, on which was a large two-story brick house, and other buildings and valuable improvements: and being embarrassed with debts, he applied to the defendant Sparks, to advance to him enough money to pay off his debts, and to defray his expenses to Texas, whither he was about to leave, and offered him the lots and premises as a 34 0 *] *McCARRON security for such proposed advances, to which Sparks consented; and it waa CASSIDY. thereupon agreed that Sparks should pay off such indebtedness, estimated at, The true doctrine and rule, as to the competency of the vendor or grantor to give evidence in a con-about $1,500, and advance enough more troversy erecting the property conveyed, are, that to bear his expenses to Texas, and that, the warrantor of property, whether real or per-the appellee should convey the lots and sonal, is, in general, incompetent as a witness for premises to Sparks, in fee, with the his vendee or grantee, in an action concerning the title to such property (Arnold el al. v. AfclVeill, 17 express understanding that appel-Ark). lee might reedeem them, within The testimony of a co-defendant in a chancery *three years next thereafter, by ["31 cause, may be taken under special leave and order repayment of the amount to be ad-of court for that purpose (Pryor el al. v. Ryburn. 16 Ark. 692). vanced with ten per cent. interest, in An objection to the competency of a witnees which event, by the same understand-
JULY TERM, 1856. MCCARRON V. CASSIDY. ing, Sparks was to reconvey the lots pellant, under the agreement as be-and premises to appellee, in fee; but if fore stated, was one of $200, due be should fail to redeem within the Rogers, for which Sparks was respon-specified time, that Sparks should sell sible as grantor; that there was the lots and premises, at public auc-another of $30, due to appel-tion, and reimburse himself, and the lant, etc.—that appellant bad paid residue, if any, to pay over to appellee; *the debt of $200 to Rogers—ad- [*37 that in pursuance of this agreement vanced $75 for expenses to Texas. The and understanding appellee executed bill further charges that the appellant and delivered an absolute deed in fee added the two sums of $75 and $30, ad-simple, to defendant Sparks, bearing vanced and due as above, and required date as above, 2d January, 1847, which appellee to give his note for the ag-was duly acknowledged and afterwards gregate amount thereof, which waa properly recorded; that after this had done at the same time that Sparks ex-been done, appellee and Sparks dis-ecuted and delivered the deed to him agreed as to the amount to be advanced for the lots and premises, as before for the expenses to Texas; and then, stated. It is further charged in the appellee applied to the appellant to bill, that appellant agreed with appel-make such advances and offered him lee, at the time, and before the convey-the lots and premises as a security ance from Sparks to him was made, therefor, and appellant agreed that he that he would rent out the houses and would assume and pay all appellee's premises conveyed, on the best possible debts, and advance money for his ex-terms, and apply the proceeds to the penses to Texas, if Sparks would con-extinguishment of such indebtedness vey to him the lots in fee, with the ex-to be incurred by appellee on account press understanding between the ap-of the advances to be made for him by pellant and appellee, that the lots so to appellant; that notwithstanding this be conveyed should remain subject to agreement on his part, he had entered redemption by appellee, on repayment into po§session of the lots and prem-of such advances to be made, and that ises, immediately after the conveyance whenever appellee should refund the to him, and that they had remained in same with ten per cent, interest, ap-his possession ever since, he enjoying pellant was to reconvey the lots, in fee; the rents and profits thereof. Appellee to appellee; that in pursuance of such further charges that, being desirous to agreement and understanding, Sparks, redeem the lots and premises from ap-by deed of the 5th January, 1847, con-pellant under the agreement, as above, veyed the lots and premises, in fee, to he had requested him to state an ac-appellant, and that the deed therefor count of the amount of the moneys ad-was duly acknowledged and recorded. vanced for him, and the rents and prof-The hill further charges that the com-its of the houses and lots, and offered plainant therein, appellee, did not re-to pay him the balance that might be member all the debts that appellant due, when it should be ascertained and was to pay for him, but that they were determined and demanded possession mentioned at the time, and did not ex-of the lots and premises, which appel-ceed $1,500: that among them was one lant did and would not accede to. There of $651 12 cents, including interest, due are special interrogatories propounded to Sparks & Miller, co-partners, the in the bill to the appellant, among them payment of which was secured to them the appellant is required to discover by mortgage on the same lots; that the true consideration of said deed, among tbe debts to be paid by the ap-what was the real meaning, agreement
MCCARRON V. CASBIDY. VOL. 18 and intention of the parties to said terest at ten per cent. thereon. He ad-deed, at the time it was executed, what mits, however, that, outside of the con-was the real consideration between tract, he told appellee that if he would Sparks and appellant, and whether or repay the money, with ten per cent. not it was not the intention that ap-interest, and pay him for the amount pellee might redeem, and whether the expended for improvements on said deed from Sparks to appellant was not lots, placed there by himself, and ten intended as a mortgage, etc. There per cent, interest on that amount from was a prayer for an account of money the time of its expenditure, that he paid, rents, etc., and for payment, re-would re-sell to nim the lots, and avers demption, possession, etc. a readiness and willingness to do so Sparks answered, admitting the still. The answer of appellant further whole bill to be substantially true. states, that $1,500 was as much as the 3811 *Appellant answered, admitting lots were worth when he purchased the title originally in appellee, and his them: that he only agreed to give so embarrass:nent with debts; but posi- large a sum for them to save a part of tively denies, upon information of ap- the debt due to him from appellee. pellee himself, that any such agree- Denies that he ever agreed to rent ment was entered into with Sparks, as out the premises, and charges that, is set up in the bill, and states, upon after the purchase made by the same authority, that the sale and he added improvements and erected conveyance to Sparks were absolute, bulidings ou the lots, to the val-and the consideration was, that appel- ue of about $5,000, and in the event lant was to pay off appellee's debts, *of the conveyance being de- p39 amounting to $2,500, and by a subse- dared a mortgage, claims to be reim-quent agreement between them, made bursed therefor, as well as for the pur-on the 5th January, 1847, Sparks con- chase money paid, with interest on veyed the lots to appellant, absolutely, each at teu per cent. per annum from by deed of general warrantee, in con- the time of their respective advances, sideration of $2,200, the then supposed and also payment of the said note for indebtedness of appellee, to be paid by $222.91, which he charges to be still appellant, and denies positively that due : admits that appellee applied to he made such advances, and took the redeem the lots and premises, and ten-conveyance as a security for the repay- dered, or offered to pay him $2,000, ment, and states that appellant paid which he refused, and he denied all appellee's debts, specifying them, to fraud, etc. the amount of 82,466 15 cents, and de- The deed from appellee to Sparks is nies that any part of the consideration exhibited with the original bill, and of the purchase, was an advance to en- purports to have been duly and prop-able appellee to reach Texas. Admits erly acknowledged and recorded, and that after the purchase and sale of the is an unconditional deed, iu fee simple. lots were completed, he loaned appellee A general replication was filed to the a small sum to bear his expenses, for answer of appellant, and a motion was which, added to another small debt, at the same time interposed by the ap-appellee gave him his note, in amount pellee, for leave to examine the de-$222.91, which he then, held. Appel- fendant, Sparks, as a witness in his lant denies, positively, that he held the behalf, which leave was granted. The lots subject to redemption, or that they appellant, after the depositions of the were to be reconveyed on the advance defendant. Sparks, and several others, made by him being refunded with in- had been published, mdved the court
JULY TERM, 1856. MCCARRON V. CASSIDY. to suppress such depositions. After- rented them out and received as rent wards, an amended bill was filed by per annum, from $800 to $1,500 ; that the appellee, which was answered and he, appellee, and appellant and Sparks replied to, aud by consent the cause were old friends, particularly appellant was set for hearing on bill, answers, and appellee : —that appellant per-etc., "and on exhibits and depositions, suaded him,appellee,to go to Texas,and as between complainant and defend- gave as a reason for taking an absolute ant, McCarron," with leave to take deed for the lots and premises, that it depositions. There appears to have would be necessary to enable him to been no action on the part of the court, sell them, if it should be thought ad-upon the motion of appellant to sup- visable or necessary for him to do so ; press the depositions of Sparks and that appellant has sued on the note for others ; but from all that appears in $222.91, obtained judgment against ap-the transcript, that motion was either pellee and certain garnishees therein, abandoned or waived by the party who and has collected the whole amount made it. from such garnishees, as appears of The amended bill states, in substance, record; that appellant has, since the that when Sparks conveyed to appel- execution of the deed, written several lant, the premises were worth $5,000, letters to him, appellee, expressing his and at least five times the amount of willingness to reconvey the lots and the debts assumed by appellant for ap- premises, and that he, appellee, left pellee ; that at the time of the convey- Fort Smith immediately after the deed ance by appellee to Sparks, appellee to appellant was made, and did not re-was keeping a tavern and coffee-house turn until about the time of filing his in the brick building upon the lots in bill. question, and had furniture, etc., there- The answer of appellant to the in, to the value of $1,000, all belonging amended bill, denies that the premises to him ; which, it was agreed between were worth $5,000 ; says that they appellant and appellee, that the former would not have sold, to any one but should take and sell, and apply the pro- himself, for more than $1,500 ; that 401 ceeds to pay the debts *a the lat- appellee had endeavored to sell them, ter, which it is averred he did not do, to different persons for less than the but entered on the premises, and car- price appellant gave him ; says it is ried on the same business, and used false, that when Sparks conveyed to the furniture, and has never accounted him, appellant, appellee was keeping for it all. The amended bill further a tavern and coffee-house in the build-charges, that when the appellee made ing ; but avers that appellee had sold the foregoing arrangements, his mind the premises to Sparks, and had left was impaired by drink to such an ex- for Texas two days before he, appellant, tent, that he had delirium tremens, his bought the premises, and received health greatly impaired, and that no e the conveyance of the same from r-'41 one supposed he would ever return Sparks ; that, after appellee had left, from Texas ; that he was totally in- he appellant, learned that he had sold competent to attend to his business ; out and gone, without making any pro-that appellant often expressed his be- vision for paying his notes to appellant, lief that he would never live to return, amounting to $1,005.60, and thereupon, and that he should, in that event, hold he went after him, induced him to re-the premises, absolutely ; that during turn to Fort Smith, and then the con-the greater part of the time that ap- veyance from Sparks to him, appel-pellant has had the p remises, he has lant, was made, aud that he immedi-
MCCARRON V. CASSIDY. VOL. 18 ately gave up to appellee his notes, *The testimony, upon which [442 amounting to $1,005.60, as a part of the the decree is predicated, is, in substance, consideration for the deed from Sparks. as follows : It denies that appellant received, or The defendant Sparks was positive agreed to sell any furniture whatever, that the transaction between himself and it denies, moreover, every charge. and appellee, was a mortgage : that he in the amended bill in regard to the was to pay appellee's debts, amounting health of mind or body of appellee be-to $1 329.61, and advanced him money ing impaired, and his incompetency to to go to Texas, rent out the property, transact business. It also denies that and repay himself, and if appellee did appellant expressed the opinion that not redeem the property in three appellee would not live to return, and years, he was to sell it, pay the debts, that he had rented the premises for and the residue pay over to appellee. from $800 to $1,500 per annum, but ad-He was as equally positive, that appel-mits that he rented out part of them, lee sought to have the same arrange-at times for small amounts, and avers ment made with himself, in the place that the house could not have been of him, Sparks: that appellee agreed to rented, one year with another, for more this because appellant would advance than $30 per month : denies that he and to him more money to go away with, appellee were bosom friends, or that and a longer time to redeem in ; that the latter consulted him about his when the deed was made, appellant business, or that he induced him to go promised to take good care of the prop-to Texas : denies giving the reason al-erty, to rent it out to the best advan-leged for making the deed, absolute on tage, and when appellee should refund its face : admits collecting the amount him the money with ten per cent. in-of appellee's note for 8222.91 : denies terest, he should have the property, writing letters to appellee, expressing even if it were ten years afterwards: his willingness to reconvey the property that the consideration expressed in the but admits he may have written to him deed from himself to appellant, was that he would re-sell the property, if nominal, and no money really passed he would pay all advances, improve-when the deed was made, and that the ments, etc., etc., and avers that appel-consideration expressed in the deed to lee was frequently at the house prior to him, Sparks, was the estimated amount October 17th, 1851, and knew and ap-of all appellee's debts. proved of the improvements that were Samuel B. Stephens, sheriff of Se-making thereon. bastian county, testified that, in Oc-Upon the hearing, the court found tober, 1851, appellant told him that he the facts to be as stated in the bill and had a deed for the property, but that amendment, and that the deed to ap-he had said to appellee if he would pay pellant was a mortgage, and appellee the amount he had expended with entitled to redeem, by repayment of ten per cent, interest, he could have the amounts advanced, with interest the property ; but that, at the time he at ten per cent. : and on taking an ac-said this, he did not expect the d—d count, the court found the amount due fellow would ever come back, or be appellant for advances and interest, to seen again. Appellee had been absent be $1,500.09, and the rents and profits from Fort Smith fox five or six years, to amount to $2,745, and that the dif-until a few days before this suit was ference, $1,244.91, was due from appel-commenced. lant to appellee, and so decreed a re-conveyance and payment of such bal-Elias Rector proved that, in October, ance. 1851, appellee offered to pay appellant,
JULY TERM, 1856. MCCARRON V. CASSIDY. $2,200 or $2,300 in gold, as the money less than $1,200: this was for the build-due him with interest. Appellant ing erected by appellee and the ten-pin said, that all he wanted was what the alley erected by appellant, the latter of property had cost him, and that he had which cost some $75 to $100. built a fine house with other improve-William B. Norton testified as to ments cheaper than appellee could him-renting part of the property, saying self have done—saying, "pay me for that in 1851 and 1852, the original them and take them: I am anxious to premises would have rented for $350 to get rid of them and get my money for SOO per annum. The improvements them." made by appellant were an addition at Gustavus A. Meyer testified, the east end of the main building, two that the property was worth brick shed rooms in the rear of the 43*] *$5,000, on the 1st January, 1847, main building, with a hall between and would have rented afterwards at from 4 to 6 feet wide, a nine-pin alley, $600 a year. an addition to the old kitchen, a frame C. B. Johnson and R. M. Johnson smokehouse, a warehouse and a privy. testified to about the same facts de-John Gardner, a brick mason, esti-posed to by Meyer. mated the improvements in brick and Willard Ayres testified, that soon stone, made by appellant, to be worth after appellee went to Texas, appellant $876. It was *measured, and so [*44 said that he had his property, and estimated by himself, and E. Herring, when he returned, and paid him back who testified to the same. his money paid out for him, he would Thomas Vernon, a carpenter, had get his property back. measured and estimated all the wood S. H Montgomery proved that ap-work, including locks and all hardware pellant had, a year or two before, used, and valued all at $1,400: and the asked $1,250 rent per annum for the whole premises, as they stood then, in property. July, 1854, to be worth $5,000. John J. Johnson testified, that, a Dennis Trammell proved that appel-short time after appellee left for Texas, lee was dissipated and addicted to hard appellant said that he had loaned him. drink: that he and appellant were as money to go off on, and was to pay intimate as brothers: that appellee was debts for him, not mentioning what a spendthrift and prodigal, and appel-debts; and that whenever appellee re-lant prudent and savivg, and a shrewd turned and paid back his money, the business man. In 1848, appellant sent property was to be his; that the prop-appellee's note to Texas, by this wit-erty, when appellant took it, was worth ness, for collection: appellee refused to from $4,000 to $5,000; that it had been pay it, saying, appellant held all his the general understanding in Fort property in Fort Smith. On his (wit-Smith, that the property was subject ness) return, he gave back the note to to be redeemed by appellee': that he, appellant, who became very angry, appellee, was intimate with appellant, and said, he wished appellee would was embarrassed and dissipated, and come back and pay him his money more under the influence of Sparks and take his property. He said, also, and appellant than anybody else—they that he had put a great deal more im-being his confidential advisers. provements on the property, than he William At. Domrell testified that in had agreed to do: that he was only to November, 1851, he applied to appel-have finished the kitchen, and a few lant to rent the premises, offering $800 other little jobs. Witness told him a year, but appellant would not take he might 'lose the premises. Appel-
MCCARRON V. CASSIDY. VOL. 18 lant said appellee would never have after appellee had left for Texas, ap-money enough to pay him. He showed pellant still had all the bar furniture witness his bills for improvements; in the bar, and continued to keep and which amounted to a considerable sum. use it. Appellee's furniture was in the house, Albert Dunlap rented two rooms on when appellant took possession, and the ground floor of the house in ques-he saw part of it afterwards, in appel-tion, in 1853, at 815 per month, and lant's possession. afterwards, occupied the frame build-George S. Bernie said that appellee ing at $100 per annum: says that .1. W. built, in 1845, on the lots, a two-story Vandever rented the frame building in brick house, a one-story frame house, a 1850, at $10 per month, for two months. small stable, and a small kitchen, and John N. blosson rented it in 1852, at also dug a well. He kept a tavern and $12 per month. John H Lane rented coffee-house there until he removed three rooms and the alley at 830 per to Texas, in 1847. He was an impru-month, in 1852. John King testified dent man; and addicted to hard drink; that in 1852, a literary society rented he and appellant were very intimate, one room up stairs at 810 per month. and he was under the influence of ap-John 1V. McDonald testified that, in pellant, who seemed to be his confi-1853, appellant asked 8650 per annum dential adviser. He was embarrassed for the brick house, kitchen and stable, when he went to Texas. Thinks the he, witness, occupying two rooms in propeaty was worth, in January, 1847, the addition and the one-story frame from three to three thousand five hun-house. dred dollars, and would have rented Tapley C. Belling, Benj. F. Doole and in 1847, and thence to 1850, both years Joseph M. Halt, for the defendant, inclusive, for from $300 to $350 per measured and estimated the carpen-annum—in 1851 and 1852, for from ter's work and materials, without ad-$400 to $500. Rents have de-ding up the items, or stating the ag-clined about 50 per cent. in Fort gregate amount. William L. Hund-Smith since 1852. Appellee did not field valued the painting alone at $600. 451 *return from Texas until the fall John H. 1. Main, on the same side, of the year 1851. Soon after appellee testified that in the fall of 1846, appel-left, and owing witness a sum of lee offered him the property for 81,500: money, he, witness, called on appel-seemed anxious to sell; said he was in lant to pay it, and he refused, and ap-debt, and wished to sell to pay his pellee paid it after his return. It was debts, and leave the country. There over $100. The premises would have was no demand for property in Fort sold in 1847 for about $3,000 in cash. Smith then. It had no real cash value. That was their cash value. He de-Does *not think anybody else [*40 scribes the improvements of appellant, would have given as much for the and says that, without them, the prop-property as appellant did. Appellee erty would have rented in 1847 for $300 was a hard drinker, but his mind was to $350, and in 1853 for about the same not impaired. Never saw him drunk amount; in January, 1854, for from or staggering. When appellee offered $275 to $300: would have sold in 1851 to sell to witness, he said he wanted to for $4,000 to $5,000; or with all the ap-sell for enough to pay his debts, and pellan t's improvements, for from $6,000 have one or two hundred dollars left to to $7,000. take him away. Ascs Clark testified to about the same Joseph Bennett thought the property effect as the last witness, and aPso, that worth, in January, 1847, about 82,000.
JULY TERM, 1856. MCCARRON V. CASSIDY. Property in Fort Smith was then very to be a mortgage, or security for a loan. low. 1. The point involved in this ques— Michael Manning thinks that when tion, is one of interest, and not with— appellant got the property, it would out difficulty and embarrassment. Of not have rented for more than $10 per interest, for the reason that it may be month. There was no demand for regarded as one of novelty, it never real property in Fort Smith, and it had having been passed upon in this State, no value He does not think anyone to the extent to which it is involved in would have given more than from the case under consideration, and of $1,200 to $1,500 for the property. embarrassment, for the reason that Thinks the improvements made by ap-there seems to be a conflict and divers-pellee cost from $1,500 to $1,700. When ity in the adjudications to which we appellee left the county, the lots would have been referred, and which have have been a dull sale at any price. Ap-fallen under our notice in the course of pellant and appellee were both Irish-bur researches upon the subject. It is men, and as intimate as brothers. insisted, by the counsel for the appel-John P. Smith, a sinner, states the lant, that the deposition of Sparks value of the work done for appellant at should have been excluded, upon th e $108.62. principle that no man should be heard, John Kirchherr thinks the painting as a witness or otherwise, to impeach worth $600, including glazing and pa-or invalidate his own deed, or his own pering. title, after he had made a conveyance John H. T. Main thinks the prop-to a third person; and diverse authori-erty was worth, in January, 1857, about ties and adjudications are invoked in $2,000, though it would not have sold support of this position, which we have for that as property was low. The lots carefully examined and considered, without improvements were worth and which we do not find to sustain t bout $400. the position contended for, to the ex-The appellant took a bill of excep-tent that counsel would have us to ap-tions to the decision of the court, al-ply it in this case. In Arnold vs. Mc-lowing parol testimony to be used to Neill, 17-154, this court by English Ch. prove that the deed, though absolute J., say: "It had been held, at one time, on its face, was meant as a mortgage. in England that no party, who has The appellant complains, in this signed a deed, shall ever be permitted court, of the entire decree, as being to give testimony to invalidate the in-unjust in every particular, and, with strument which he has so signed. But great earnestness, insists that it is un-this doctrine was overruled there, and warranted under the law and the evi-our decisions favor the competency of dence. the witness," citing Tucker v. 'Vila-Before proceeding to determine the mowicz, 8 Ark. 157, and cases there main question involved, we will notice cited; Caldwell Exr. v. McVicar, 12 and dispose of two incidental questions, Ark. 750; Knight v. Packard, 3 Mc-to which our attention has been called Cord's R. 71; 1 Serg. & Rawle Rep. 102 by the counsel for the appellant: that 2 Binn. 165. is to say, 1st. Was the defendant, The true doctrine and rule on the Sparks, a competent witness for the ap-subject may be thus stated. The war-pellee, under the circumstances shown rantor of property, whether real or per-from the case as stated ? and secondly, sonal, which is in controversy, is, in may a deed absolute on its general, incompetent as a witness for 47*] *face be shown, by parol proof, his vendee or grantee, in an action con-
MCCARRON V. CASSIDY. VOL. 18 cerning the title to such property. 1 See strict conformity to the rule laid down 1 Greenl. En. sec. 397, p. 505, Searle V. in Pryor et al. v. Ryburn 16 Ark. R. Searle, 2 Ralle Abr. 685. 21 Vin. Abr, 692, and the authorities there cited in tit. trial. G. Pl. 1. Steers v. Carwidine support of that rule. If Sparks had, 8 C. & P. 570. really and in truth, been incompetent, The rule, as insisted upon by the for the reasons and causes assigned by counsel for the appellant, is the one counsel in the argument of the cause in laid down by Lord Mansfield in Walter this court, the proper time to have ob-481 v. Shelly, 17. R. 296; which was jected to his deposition on that account, the first doubted in Bent v. Barker, 3 would have been at the hearing of the T f ?. 27, and, afterwards, in Jorclane v. cause in the court below. 2 See again Lashbrooke, 7 T. R. 601, was directly Pryor et al. v. Ryburn, as above. attacked, and completely overthrown But on objection of the transcript, we though defended with much zeal and find no such inspection urged by the no little feeling by Mr. Justice As-counsel for the appellant in the court h urst. The question has been put com-below, at any stage of the proceedings. pletely at rest in this State, by the It is true that a motion was made to authority of the cases already quoted. suppress the deposition of Sparks, but In the case at bar, the witnes, Sparks, th is matter seems to have been was proposed by the appellee, who did abandoned or waived, and appears not stand in the relation to him of never to have been acted on by vendee or grantee in respect to the *the court. To allow an objec- F49 property in controversy in this suit, so tion to the competency of a witness in as to bring him within the letter, or this court, for the first time, would be, spirit of the rule, which we have stat-virtually, to assume for this court orig-ed. His interest, if he had any in the inal jurisdiction of the question of com-suit, was certaihly hostile to that of the petency. We therefore hold in this appellee, and coincided with that of case, that, notwithstanding we have the appellant, against whom he was of-considered the competency of Sparks' fered as a witness; The appellant can-testimony, that question does not legiti-not be heard to complain on account of mately arise in this cause, for the rea-the testimony of one whose interest son that objections, on that account, may be supposed to bias and warp his were not made in, and passed upou by leaning in his favor. If the appellee is the court below, at any time during satisfied to trust to his honesty, candor the progress of the cause through the and truthfulness, we know of no one, court. under the circumstances, entitled to 2. As to this question, we think complain. Seel:Greenleaf's Evidence, there can be no doubt. That parol ubi. sup.; Gresley's Eq. Ev. 249. testimony is admissible to prove that a We have been considering the ques-deed, absolute on its face, was intended tion at hand, as if it had been really as a mortgage, and as a security for a loan or debt, is no longer an open ques-and properly presented foor ur deter-tion in this State. See Blakemore V. mination, in the case before us. But Byrnside, 7 Ark. R. 505; Johnson Exr. such is not the case. It will be ob-v. Clark, 5 Ark. R. 321; Slott, White & Henry & Cunningham, 13 Ark. served from the statement, which we Co. v. R. 119.3 have given, that. the deposition of V. Sparks was taken under special leave 2. Objection must be made in apt time. Gage Melon, 1-228. Note 2. and order of the court below, and in 3. On parol testimony to explain, see Johnson v. 1. Interest does not disequallfy from testifying. Clark, 5-337, note 1. Trowbridge v. Sanger, 4-132, Sec. 2857 Mans. Dig. note 1.
JULY TERM, 1856. MCCARRON V. CASSIDY. And it may be said that such is the cause, as we have above stated. We law, as held in most of the States shall not attempt an analysis of each, of this Union, as well as the highest nor enter into an extended argument courts of Great Britian. 4 Kent's with the aim of establishing the cor-Corn. 141, et seqr. ; 1 J. Ch. B. 167; rectness of our conclusions in respect 3 Dana R. 276 ; 1 Row. U. S. R. 118 ; to them. 12 Id. 189; 4 Blackf. 539, part 2, vol. 2. Holding, as we do, that the deed, Leading cases in Equity 432 et seqr. ; 2 from appellee to Sparks, was without Atkins 90, 258; 3 Id. 389 ; 1 Powell on consideration, and that the one from Mort. 286. Sparks to the appellant was executed Having disposed of the foregoing at the instance of appellee, on the questions, we will at once proceed to terms and conditions which we have the main enquiry, that is to say, is the just stated, which, in law, constitute it, 'decree rendered by the court below to all intents, a mortgage, and in the warranted by the pleadings and proof hands of the appellant, a security for considered at the hearing. the sums actually paid by him for, and By reference to the statement, we loaned to the appellee, we will now think there can be no doubt but that proceed to determine, from the plead-the deed from Sparks to the appellant ing and evidence in the cause, whether was intended to be a security, in the those advances have been liquidated by liands of the latter, for the advances in the appellee; and if so, it will follow cash that he undertook to make for the as a necessary consequence, that he is appellee. It is equally clear, also, that entitled to redeem the preinkes, and the terms, on which the deed was have the mortgage cancelled. made by Sparks to the appellant, were, Looking at the original bill, the an-that the latter was to have paid certain swer and proof, we think it may debts, amounting, principal and in-be fairly concluded that, on the terest, to less than $1,500, for the appel-18th July, 1854, when the hearing was lee, and in addition thereto, loan him had in the court below, the appellant a sufficient amount to defray his ex-had paid debts for, and had advanced penses from Fort Smith to Texas : that money to appellee, ou account of the appellant was to take and hold posses-mortgage security, to the aggregate sion of the lots and premises, from the amount of $992.12. Itdoes not aPpear, time the arrangement was made, however, from any medium of evidence, 501 *until such time as the appellee when these payments were made ; but should repay to appellant the amount conceding that it was done at the date to be advanced by him as above, with of the deed from Sparks to appellant, interest on said sum at ten per cent. 5th January, 1847, he was entitled to per annum ; that the lots and premises, interest on this amount from that in the hands of appellant, were to have time to the date of the hearing, 18th been leased out by appellant, and the January, 1854, at the rate of teu per income therefrom arising, applied to centum per annum. The interest ou the discharge of the appellee's in-the advances and loan, from the time debtedness to be incurred as above, and assumed as above to the date of de-that appellant should not appropriate cree, amounts . to the sum of $617.47; more of the income arising from rents, which, added to the principal, than the sum of $40 to the improve-*992.12, constitutes the aggregate [#51 ment and repairs of the prethises in amount of the indebtedness of the question. We say that these facts ap-appellee to the appellant, at the time pear from the pleading and proof in the the decree was rendered, the sum of $1609.59. 26 Rep.
MCCARRON v. CASSIDY. VOL. 18 The evidence in reference to the value which might be supposed to accrue on of the rents and profits of the lots and the yearly rents of the premises. This premises in question, is exceedingly we have not done for the reason that conflicting, so much so, that we have the appellee did not make the claim, had much difficulty in coming to a con- in his bill or amend nient, and because clusion on the subject. Taking the evi- the evidence does not show that there dence adduced at the hearing, in con- was A any agreement as to interest [ .5 2 nection with the concessions of coun- on this account. Interest does not, sel made in their argument, we have ordinarily, accrue on such demands. fixed the annual rents of the premises In the estimate we have made, noth-in controversy at $400, which, com- ing has been allowed to the appellant puted from 5th Jan uary,1847, to the date for improvements placed on the lots, of the decree rendered by the court be- beyond the $40 authorized to be made, low,aperiod of a little over seven years, for the reason that a mortgagee in pos-will make the aggregate value of the session, without special authority, will rents, within that period, S2,800. De- only be allowed for such improvements ducting the amount of advances made as are absolutely necessary for the sup-for, and the loan to the appellee by the port of the property, and to keep it appellant, will leave the amount of $1,- from waste and damage. See Sandon 190.41, without taking into the estimate v. Hooper, 6 Bea. 246; Nusom v. Clark-the sum of 840, which the proof conclu- son, 4 Hare 97; Story's Equity, see. sively shows was paid out by the ap- 1016 V.; Moore v. Caber, 1 John Ch. B. pellant for repairs and improvement of 385; 1 Hoffman's Ch. B. 352. the premises, under the contract as es- In Sandon v. Hooper, Lord Lang-tablished in this cause. Interest added dale concluded by saying : "The mort-on this amount for several years, on gagee has no right to make it more ex-the hypothesis that it was paid as soon pensive for the mortgagor to redeem, as the mortgagee went into possession, than may be required for the purpose will make the amount to be deducted of keeping the property in a proper from the decree on this account of prin- state of repairs, and for protecting the cipal and interest 868.00. Deducting title to the property." Having, pre-the amount of $1,190.41, the difference viously, in the same case, said : He has between the sums advanced for, aud no right to lay out money in what he loaned to the appellee, by appellant, calls increasing the value of the prop-and the accrued interest thereon, from erty, which may be doLe in such a way the amount of $1,244.91, decreed by as to make it utterly impossible for the court to be paid by the appellant the mortgagor to redeem: that is, what to the appellee, and we have the sum has been termed, improving a mortga-S . 54.50, which, added to the value of the gor out of his estate." improvements and interest as above, The decree of the court below, for makes the sum of SI22.50, as the the causes aforesaid, will be reversed, amount the decree rendered by the and this court, under the statute in court below, exceeds the true amount such case, will proceed to render such due by the appellant to the appellee, decree, as the circuit court of Sebas-under the law and evitience in this tian county should have rendered, in cause. The decree for the appellee conformity herewith. should have been for 81,12241, instead The decree is reversed, and a decree of $1,244.91. for 81,122.41 rendered for the appellee, In making this estimate we have not in lieu of the decree of the court betaken into the account the interest, low.
JULY TERM, 1856. The casts of this court will be paid by the appellee. and those of the circuit court of Sebastian county will be paid by the appellant, except so far as a part of them may, legitimately, be taxed to Sparks, the other defendant. Except as to the amount, the decree of this court will conform to the decree of the court below. Cited : —20-650 ; 21-316 ; 23-19-131-651 ; 25-159- 380 ; 24-254 ; 34-121 ; 38-221-413 ; 46-527.
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.