Stryker v. Hershy

38 Ark. 264

Opinion

Harrison, J.

The only question in this case for our consideration is, whether the deed from Rogers to Latham, and the agreement between them, which, as parts of the same transaction, must be construed together, constitute a conditional sale or a mortgage; and as no extrinsic facts or circumstances have been shown, the intention of the parties by which it is to be determined is to be ascertained from the instruments alone.

If intended as a security for money, or a debt, as is contended by the appellants, the contract was a mortgage; if not, it was a conditional sale. Johnson’s Ex’r. v. Clark, 5 Ark., 321; Porter v. Clements, 3 Ark., 364; 1 Jones on Mort., 265; 2 Wash. on Real Prop., 63.

No mention is made in the agreement of any note or other •evidence of debt; and the only word found in it that is the least suggestive of the idea of the existence of a debt is that of redeem, which, in its connection in the instrument, might appropriately have been used as synonymous with ■re-purchase.

We can see nothing on the face of the agreement, or of ■both instruments as construed together, from which the inference may be drawn that a security for money was intended. On the contrary, the conclusion is clear, not only from their language and purport, but also from the absence •of any mention or proof of any indebtedness, that the contract was a conditional sale, and not a mortgage.

The decree is affirmed.