55 Ark. 1 | Ark. | 1891
This was a suit by the widow and heir at law of E. W. Little to redeem two improved town lots held by the defendants under a deed absolute in form, but which it is alleged was a mortgage, executed by Little in his lifetime. The court below found that the deed was in fact a mortgage, and decreed that the plaintiffs might redeem upon paying a stated balance found due upon the mortgage. The defendants have not appealed from the decree estabiishing plaintiff’s right to redeem, and the only questions arise upon the plaintiff’s objections to the statement of the Account.
The allowance to the mortgagees included the value of all improvements on the property at the time the account was stated; and as the lots were improved when they entered, the allowance gave them pay for improvements they had not made. It is contended that this was erroneous: first, because being mortgagees they were not entitled to pay for improvements ; and, second, because if entitled to such pay, it would not include improvements on the property at the date of their entry.
The second ground of objection we think is tenable. As the allowance included the value of a house and other improvements on the land when the mortgagees went into possession, we think the court erred in fixing it. A witness of apparent fairness and intelligence, introduced on part of the mortgagees, testified that the present value of the lots and improvements was $350; the widow and the mortgagees agreed, before the mortgagees entered into possession, that the lots as they then stood were worth $175. There is no proof to show that they were mistaken in their estimate ; and if we adopt it and deduct it from the present value, we ascertain the value of improvements made by the mortgagees, $175. This, as nearly as can be ascertained from the proofs, is the amount for which the mortgagees should have a credit on account of improvements.
The decree should have credited the mortgagees as reported by the master, except that for all improvements the credit should have been $175 ; it should have charged the mortgagees with rent at the rate of sixty dollars a year from December 1, 1884, down to the time of closing the account.
For error indicated in stating the account the judgment will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.