Edwards v. Bond

151 S.W. 243, 105 Ark. 314, 1912 Ark. LEXIS 434

• Court: Supreme Court of Arkansas
• Decided: November 18, 1912
• Status: Published

Opinion

Kirby, J.

This is a suit in chancery to declare a deed, absolute on its face, a mortgage, for an accounting and redemption of the land conveyed, and from a decree in favor of appellee, refusing to grant the relief prayed, this appeal comes.

The testimony is in sharp conflict, and it may be that there is a bare preponderance of it in favor of appellant.

The deed being absolute in form, the burden was upon appel’ant to show that it was a mortgage, the law presuming that an instrument is what it appears on its face to be, an absolute conveyance; and, in the absence of fraud or imposition, the proof to overcome this presumption and establish its character as a mortgage must be clear, unequivocal and convincing. Hays v. Emerson, 75 Ark. 551; Rushton v. McIllvene, 88 Ark. 299.

We are unable to say that the chancellor erred in holding the evidence insufficient to overcome the presumption arising from the deed of absolute conveyance, that it is what it purports to be, and the decree is affirmed.