ARK.] REALTY INV. Co. V. HIGGINS. 423 REALTY INVESTMENT COANY v HMGINS. ; . .4-4219 . Opinibil delivered . Maich 16, 1936.. , REFORMATION OF INSTRUMENTS JUDGMENT.—Where the prayer in the answer filed in an action to foreclose a mortgage . is , that the lands be , declared free from any and all claims of plaintiff and for any and all other legal and equitable relief 'te which defendant may be entitled whether specifically Piayed for or' riot, 'it is sufficient td justifY . the Court in refoiming the mortgage, if relief Cannot be otherwise. given. It is th& statement of facts and not • the :prayer . for relief that constitutes the cause . of , action, and the court, may grant any . relief which the pleaded facts warrant
424 REALtV INv. CO. V. HIGGII : sTS. [192 under a. prayer for general relief or without any Prayer at• all, So long 'as it is justified bY the issues and the testimo6r. 2. REFORMATION . OF INSTRUMENTS.--7 While reformation of an instrument will not be granted except upon evidence that is clear, decisive and unequivocal, yet where tesiimony shows express - agreement to release part of property to one of mortgagors on the payment Of installments due horn such mortgagor it will justify a reformation of the mortgage. Appeal from Conway 'Chancery . Court ; C. M. Wof-ford, Chancellor on Exchange ; affirmed. • June P. Wooten; for appellant. Dean, Moore & 13razil, for appellee; • SMITH, J. On'NoveMber 7, 1925, W. M. Carter* subscribed for . $1,250 *stock in the Travelers Building and Loan Association of Little Rock. He borrowed a like amount from tlie association for which he gave his note and attached his stock as collateral security. As' further security he executed a mortgage to the association upon certain lots owned by him in the city of MorriltOn. The dues 'and interest payments had become delinquent when on December 4, 1930, the • secretary of the . asSociation wrote Messrs. • Dean, Moofe, and . Brazil, attorneys located at Morrilton, instructing them to institute foreclosure proceedings. M: H. Dean, a member of the above-named law firm, answered this letter by stating that suit had • been filed as directed. The . complaint prayed judgment for $1,206.87 and for $87.04 delinquent taxes which the association i i ad paid. Clifton Moose was the local agent of the association at Morrilton and collected the monthly dues from the association's members,• who resided . there. ' The law firm of which Dean was A: Member attended to the as-sp ciation's legal business in: , -Morrilton and brought all of its foreclosure suits. •ean had been told by the-president of the association, who resided in Little Rock, that Moose had - charge . of the association's loan§ in*Moe-. rilton, and the' attorney was directed to follow Meose's orders in regard . to them. - • It .appears that after obta, \ Iiiihg fbe loan, Carter.sold .two of the mortgaged lots to.Lugenia and Rosie William-. son, colored women, who are sisters. A third . lot, described as lot. 3, block 10, of Griffen's Addition to the
REALTY INV. CO . V. HIGGINS. 425 • town of . Morrilton, had been sold by him to Lena , Hig-gins, a colored woman. These women were made parties defendant to the foreclosure suit. It is certain that negotiations were entered into- re-• garding, this foreclosure suit, and that as a resnit of these negotiations, the Williamson sisters and Lena Hig-gins executed a mortgage on December. 19, 1930, which was. prepared by, Dean • and acknowledged before .him notary public„ This mortgage described the . three lots which Carter . had sold the women . and in• addition described a lot owned by Lena Higgins, which she had not , bonght.from Carter, but which adjoined the lot she had purchased from him.. After the execution of this new mortgage the foreclosure suit was . dismissed, and the new mortgage was sent to the association's home office in Little Rock withOut explanation of its provisions. Lena Higgins had bought 10..3 subject . to the mortgage from Carter to the association,, but she was under' .no obligation to pay Carter's loan until she *joined in the execution of. the new mortgage which included her home as well as lot .3. The,new mortgage was:executed on a printed form, but the following recital of its purpose and consideration was written into it: `The sale is on the condition that .whereas we are . justly, indebted unto, the . said Travelers Building and . Loan Association in the sum of thirteen hundred five and 31/100 ($1,305.31), dollars eyi-denced by bond andraortgage executed by W. M. Carter and wife to said Travelers Bnilding and Loan Association under date of November 7,. 1925, which bond .was given for, and said mortgage secures a loan Of $1,250, and this mortgage is executed by us to further secure said indebtedness * * '. The said Lena Higgins agrees, to pay $16.66 payable on the 10th day of January,.1931, to • June 10, 1931, inclusive, and said Lugenia son and Rosie Lee •Williamson agree to pay $16.66 tho 10th ,day of January, 1931, and like amount • on the 10th day of . each month thereafter including June,.1931. After. June 10, 1931, the total amount-to be paid will be $16.66- each month- until said indebtedness is paid."
426 REALIt INV. Co.. V. AIGGINS. [192 'In the early part of 1932; the Pulaski 'Chancery Conit appointed a:receiver 'to take over the assets of the' association. The Carter loan was aniong these; and, as the new . mortgage had been executed subsequent, to file institution of the original foreclesuré suit,- an , athended complaint was repared by 'the attorney for the receiver' praying the foreclosure of the new mortgage,'he signed the name 'of Dean; Moore and Brain 'with hiS' own as solicitors for the plaintiff. This complaint Was :filed November 1;1932: 'Seme time in 1933, a fire destroyed the building 'located on the : lots ' , sold' the WilliaMson women, and whenthe insurance WaS adjusted; theY'were' given credit for $900, and by order of the Pulaski Chan-eery Ceurt; where the receivership Was' Pending;the tWo las 'were ordered released froin the mortgage. The second foreclosure suit was disniis .sed:, with prejudice on Jund . 12, :1933, : bnt . Was later reinstated' on motion of the attorney for : the receiver. On October 6, 1934, an additional amendment to the Complaint was filed: showing release' of the' Williamson lots because Of 'the, $900 credit and judgment was prayed for the balance of $379.78 then alleged to be due on the original loan to Carter. Oh NoveMber 24;1934; the firm of Dean, Moore &13razil filed' an ansWer for Lena Higgin g which raised the iSsnes' we are now called niion to deeide...*This arisWer alleged that the 'OnsideratiOn for the mortgage Which, Lena Higgins had , : exeented on her two lots'Was an agT0e-ment by : her to make' Sik'payMerits of $16:66 'eAeh, and tO paY-' an attotiley's' fee 01 , 25. nuniber' of rileadings' were filed. Which do nOt'elueidate' the controlling iSsneS and are 'therefore not disenSsed. At the- trial' from which , this appeal' domes, Lena Higgins leStified that . when slie was made a , party I to the original fOreelosure I suit'She'ealled on . Mr.' MoOse . and discussed the 'shit with him; arid it , was agreecf that she' should riay $100 on the mortgage indehtedrie g s, 'and a fee of $25 for the 'attorney who had brought the fore-: Closure stit,, and that these'payments would discharge the' lien of the Mortgage-against her property ; *but that she. was required fo 'give additional security for the payment
ARN.] REALTY INV. CO . V. .HIGGINS. 427 of this money, and that this was done by executing the new mortgage which this suit was brought to foreclose. The testimony of Dean • fully support§ this contention. • ''He teStified that he Was directed by Moose to prepare a mortgage to that effect, and that he did So. He ftrther"testified 'that the purpOse, arid, as he thought,.the effect of :the : recital hereinbefore copied from the mbil-gage of Lena Higgins and the Williamson sisters was to require Lena Higgins 'to ' make monthly payMents . ' of $16.66 beginning January10,1931,.and eXtending to June 10th of that year, and to require the , Willia:mson sisters to make similar payments for the Same period'of and to thereafter require the Williamson sisters only to continue 'payrnents of '$16.66 per month untiFthe debt was paid. :: Dean testified that he was told by . both Moose and Lena Higgins , that . thi'S was the 'consideration for the hew mortgage Which 'he Prepared. Lena Higgins paid him the $25 atterney fee as agreed, -and she also thade the six- monthly payments; Dean testified that he was the : only member of the law firm who was familiar with the transaction and knew the facts. He has retained his inembership'in this' laW firth although he removed to St. LOuis 'in H 1933; Where lie-has Since been emplOyed as attorhey for the Federal Land Bank of St. Lonis. When he learned that his firm's naine had been signed tO the complaint filed to foreclose the new : mortgage, he notified the officers of the aSsOci'ation that he cOuld ndt dcbept that employment, as he had already collected and paid . over the debt which the' Mortgage 'Secured, and he wOuld be comPelled to :file an answer setting up the facts herein recited. The decree from which this appeal:ComeS Contains no sPecial. findink of fact; bUt d ' id dismiss the forecloSure proceeding as being without equity. The recital of the consideration for the , mortgage here sought to , be , foreclosed copied, above, is somewhat ambiguous, but it:does not appear to expressjhe purpose . of releasing Lena Higgins , ' upon payruent , of $125, and appellant , insists that, as the reformation of the mortgaff e , was not , prayed, As , foreclosure: should be orderedb, and. that testimony should not be heard to contradict.or explain it. , :,: •
428 REALTY' INV. CO. v. HIGGINS. [192 It is true the reformation of the mortgage is not
prayed, but it is true, also, that its reformation would not be required, if we accepted „Dean's construction of it. .But it was prayed that upon a final hearing the said lands be . declared free of any and all claims of plaintiff, and for any and all other legal and , equitable yelief to
which Lena Higgins was entitled whether specifically prayed for or not. We think this prayer is sufficient to
ask reformation, if relief cannot be otherwise given. But it is the statement of facts, and not the, prayer for relief which constitutes the cause of action; and the court
may. grant any relief .which the pleaded facts warrant
under a prayer for general. relief or .without any prayer
at all; but the courts will not suffer the plaintiff-to:take a decree that is not responsive to the issues nor justified
full development of testimony. Baldwin v. Brown,
166 Ark. 1, 265 S. W. 976. If the court did not in fact interpret the mortgage as• Dean testified .it was intended to . be, the decree in effect accords relief by reformation. Such is the effect of a refusal to decree its foreclosUre. Appellant insists that reformation . of a written instrument, even when that relief is properly prayed, will not be granted except upon evidence that is clear, unequivocal and decisive.. This is a correct statement of the law, hut . even . so , we think. the testimony measures up to thatrequirement. Pavidson v. Peyton, 190 Ark. 573,, 79 S. W. (2d) 734. The testimony does not disclose the value of any one of the three lots sold by , Carter to these colored women. But we do know that the lot sold Lena Higgins was . unimproved while there was a building on the-lots . sold to the Williamson women on which as much as $900 ihsurance was collected when it burned. Moose may have thought the $125 was a fair and proportionate part of the debt for Lena Higgins to pay. MOose is now dead, but the testimOny of Dean, who at the . time was , the association's attorney, is unequivocally tO'the effect that Lena Higgins' lot should be released from the . lien of the Carter mortgage when she had made the payments 'required of her by her . own mortgage. 'She paid the .$25 and assumed the payment and *gave; additional secUrity for the $100 which she later paid. .The court therefore
429 . iiroperly refused to deeree the fOreelo r sure•of the mOrt-cr • tfcre aimill8t her lot g,.and- it is; therefore, 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.