Sparks v. Robinson

51 S.W. 460, 66 Ark. 460, 1899 Ark. LEXIS 138

Opinion

Wood, J.,

(after stating the facts.) There was evidence to support the finding that the transaction reflected by the above facts was a loan of money at the rate of ten per cent, per month, and that it was usurious and void.

The court was clearly justified in concluding that the instrument purporting to be a bill of sale, although absolute on its face, was intended by the parties as nothing more than a security for the money advanced. The right of redemption was reserved to the grantor in the face of the instrument, and the extraneous proof warranted the conclusion that the instrument was intended as a mortgage. Stryker v. Hershy, 38 Ark. 264. In ease of a mortgage the mortgagee becomes the absolute owner, where there is a failure to pay, and no redemption.

The instrument itself, and the sale ticket given with it, show that the grantor had the privilege of redeeming in thirty days, by paying the-principal and not exceeding ten per cent., and the proof shows that at the end of each month the eighty cents, or ten per cent, per month, was collected, and another .-ale ticket was issued granting the same privilege. And this might be continued ad infinitum. The iaw shells the covering, and extracts the kernel. Names amount to nothing when they fail to designate the facts. We are of the opinion that the court was justified in concluding that the papers called “bill of sale” and “sale tickets” were nothing more or less than a shift for a usurious loan of money. Tillar v. Cleveland, 17 Ark. 287; Ellenbogen v. Griffey, 55 Ark. 270, and cases there cited.

The damages may be excessive, but this was not made a ground of the motion for new trial.

No written pleadings were necessary, and the proof raises the issue of usury.

Affirm the judgment.