| Ark. | Oct 3, 1921
(after stating the facts). The deed to J. T. Souter to the land in controversy is absolute on its face. While equity will permit parol evidence to be introduced to show that the transaction was intended as a mortgage, in order to overcome the presumption of law and. show from the absolute form of the deed that the transaction was intended by the parties as a mortgage, the evidence must be clear, unequivocal and convincing. Wimberly v. Scroggin, 128 Ark. 67" date_filed="1917-03-12" court="Ark." case_name="Wimberly v. Scoggin">128 Ark. 67, and Snell v. White, 132 Ark. 349" date_filed="1918-01-28" court="Ark." case_name="Snell v. White">132 Ark. 349.
According to these and .other decisions of this court, for the purpose of ascertaining the true intention of the parties, the court will consider all the surrounding circumstances, including the value of the land, the price paid, as well as the acts and declarations of the parties at the time the transaction was had.
Tested by this rule, it can not be said that Lillie Jefferson showed by clear, unequivocal and convincing testimony that the deed to the land in controversy to J. T. Souter was intended to be treated by the parties as a mortgage. On the one hand, Lillie Jefferson testified that her husband induced J. T. Souter to pay off an indebtedness against the land and to take an absolute deed thereto as security. On the other hand, Souter denied that he made such an agreement with Scott Jefferson, and testified that it was intended that the deed should be an absolute one. He admitted, however, that he made a verbal agreement with Scott Jefferson for a resale of the land if Jefferson would pay him back the purchase money and an account for supplies which he ówed him. Souter received a deed to the land on the 20th day of January, 1912. He waited on Jefferson during the years 1912 and 1913 to carry out his contract to repurchase the land. Jefferson failed to carry out his part of the contract for the repurchase of the land, and it was then agreed that Jefferson should begin to pay rent for the land. Souter is corroborated by the testimony of the merchants who agreed to furnish Jefferson with supplies in 1914.
The merchant testified that Jefferson told him that Souter .only claimed a lien for rent and would waive his landlord’s lien for supplies. The declaration .of Jefferson to the merchant was against his interest and is admissible against Ms successors in interest and all who claim under Mm. Russell v. Webb, 96 Ark. 190" date_filed="1910-07-11" court="Ark." case_name="Russell v. Webb">96 Ark. 190, and Strickland v. Strickland, 103 Ark. 183" date_filed="1912-03-18" court="Ark." case_name="Strickland v. Strickland">103 Ark. 183.
It is claimed that the testimony of Lillie Jefferson is corroborated by the fact that the consideration agreed to be paid for the land was grossly inadequate. Counsel point to the fact that Souter only claimed $592 and that the land was worth $1,000. Souter purchased the land in January, 1912, and the testimony showing the land to be worth $1,000 referred to the time when the present suit was brought, which was in January, 1917. It is a matter of common knowledge that lands appreciated greatly in value during the.period of time referred to, and the alleged inadequacy of price is not, under the circumstances, of any weight in determining whether the transaction was an absolute sale or not.
It is true that the'testimony of Lillie Jefferson is corroborated by the attorney.who testified that he had made a tender of the amount claimed to be due by Souter, and that the latter had refused to accept the tender and execute a deed to Jefferson to the land. The testimony is in direct and irreconcilable conflict, and Lillie Jefferson failed to establish her claim by that clear, unequivocal and convincing testimony which is required under the settled law in this State.
It follows that the decree must be affirmed.