Robson v. Tomlinson

15 S.W. 456, 54 Ark. 229, 1891 Ark. LEXIS 25

• Court: Supreme Court of Arkansas
• Decided: February 21, 1891
• Status: Published

Opinion

Cockrill, C. J.

1. whenmortgage construed to be assign-The instrument relied upon by Tomlin- . . . . . , son, the-interpleader, is in form a mortgage, and not an assignment for the benefit of creditors. The presumption, until overcome by proof, is that the parties intended it to have the effect the law gives to a mortgage—that is, that it ■should stand as security for a debt. The fact that it provides that the mortgagor should surrender immediate possession to the trustee for the mortgagee does not convert it into an assignment. To accomplish that result, it must be .shown that it was the intention of the parties that the debtor should be divested, not only of his control over the property, but also of his title. Bank v Crittenden, 66 Iowa, 237.

The equity of redemption may be mortgaged or sold, and so be of value to a debtor who has not the pecuniary ability to redeem ; and he has a right to reserve it in dealing with his creditor, regardless of his solvency. The insolvency of the debtor, and the fact that the instrument authorizes the trustee to take immediate possession and proceed to sell the goods at so short a period after its execution that it seems unreasonable that the debtor could have expected to exercise his right of redemption or derive a benefit from it, are circumstances which, in connection with other facts, may tend to show that the parties intended to make an absolute appropriation of the goods to raise a fund to pay debts, and so to make an assignment. Box v. Goodbar, ante p. 6. But they are not conclusive of that intent. Neither the possession of the goods, nor the unreasonableness of the debtor’s expectation of paying the debt at maturity, nor his intent never to pay, is the criterion for distinguishing a mortgage from an assignment. The controlling guide, according to the previous decision of the court, is, Was it the intention of the parties, at the time the instrument was executed, to divest the debtor of the title and so make an appropriation of the property to raise a fund to pay debts ? Richmond v. Miss Mills, 52 Ark , 30; Fecheimér v. Robertson, 53 ib., 101 ; Box v Goodbar, ante p. 6.

If the equity of redemption remains 'in the debtor, his-title is not divested, and an absolute appropriation of the property is'not made. In arriving at the intent of the parties, therefore, the question is, not whether the debtor intended to avail himself of the equity of redemption by payment of the debt, but was it the intention to reserve the equity ? If so, the instrument is a mortgage, and not an assignment.

2. conciusivenessof. court's finding, The cause was submitted to the court without a jury, and . it found that the facts adduced in evidence were not sumcient to overcome the intention of the parties as expressed. in the mortgage. It is sufficient to say that the finding is-not in the face of the proof. The finding of the court in this class of cases is as conclusive as the verdict of a jury.. Hanks v. Andrews, 53 Ark., 327; Riggan v. Wolf, id., 537. The case stands then as though the court had declared the law in the appellant's favor, and a jury had returned a verdict aghinst them upon evidence which we cannot say is insufficient to sustain it. Wolf v. Gray, 53 Ark., 75. The-fact that the cause was tried upon an agreed statement of the facts and circumstances affecting it does not alter .the rule in that regard, because a jury would have been warranted in drawing from the whole case the conclusion that the parties were actuated by a motive consistent with the legal import of the instrument.

Affirmed.