38 Ark. 207 | Ark. | 1881
It is apparent, from the face of the conveyance from Golightly to the appellant, that it was intended as an indemnity to the appellant against his liability in the note to Jones; and the circumstances attending its execution also clearly show that to have been its object and pur-, pose. There is nothing upon its face, or in the attending circumstances, from which it might be inferred that a conditional sale, rather than a mortgage, was intended, and even if there could be a doubt as to which was intended, the law would construe it to be a mortgage, rather than a conditional sale. 1 Jones on Mortgages, sec. 258.,
A mortgage is not necessarily a security for debt; it may be for the performance of some act, or, as in this case, an indemnity against some liability of the mortgagee. 2 Wash, on Real Prop., 36 ; 1 Jones on Mort., sec. 16 (and note).
The deed upon a sale of land under execution may be made by a deputy sheriff in the name of his principal. Freem. on Executions, sec. 327 ; Her. on Executions, 287.
The deed from the sheriff to the appellee was regular and valid on its face, and as its validity was not denied, nor in any manner called in question by the answer, it was admitted, and evidence to impeach it was inadmissible. Sec. 4608 Gantt’s Digest.
The decree is affirmed.