Henry v. Henry

221 S.W. 481, 143 Ark. 607, 1920 Ark. LEXIS 242

• Court: Supreme Court of Arkansas
• Decided: May 3, 1920
• Status: Published

Opinion

Smith, J.

(after stating the facts). The instrument was in the form of a deed; and we think was not in fact a mortgage. It secured no debt, and was not intended to do so. No relation of debtor and creditor subsisted, and it is manifest that W. H. Henry did not at any time regard himself as under obligation to repay J. T. Henry any part of the $9,100. The writing given by J. T. Henry to his brother, set out above, which, practically speaking, was a contemporaneous writing, shows that the transaction was a completed sale, subject only to the condition recited in the writing set out above. The title fully passed by the deed, but there was an agreement that, within the time limited, W. H. Henry should have the privilege of reselling the interest previously conveyed. J. T. Henry, did not agree to sell his own interest, and there is no showing that any one ever offered to buy the undivided interest. W. H. Henry testified that his brother told him he had turned the management of the lands over to his son, Dr. Hugh Henry, and Dr. Henry testified that he' told McLeod that the owners of the land would sell the whole interest and would take $12 per acre for it, but that he never heard anything further from McLeod, and neither McLeod nor his uncle ever produced a purchaser for the land at any price.

The rule is well settled that a conveyance absolute in form is presumed to be a deed, and to overcome this presumption in the absence of fraud, the evidence must be clear, unequivocal and convincing. Snell v. White, 132 Ark. 349. The testimony here establishes nothing more than a right to resell under the conditions stated. Hays v. Emerson, 75 Ark. 551. And the condition, upon which it was subject to be defeated, was never met, and we must, therefore, affirm the decree of the court dismissing the complaint for the want of equity. It is so ordered.