54 Ark. 229 | Ark. | 1891
The equity of redemption may be mortgaged or sold, and so be of value to a debtor who has not the pecuniary ability to redeem ; and he has a right to reserve it in dealing with his creditor, regardless of his solvency. The insolvency of the debtor, and the fact that the instrument authorizes the trustee to take immediate possession and proceed to sell the goods at so short a period after its execution that it seems unreasonable that the debtor could have expected to exercise his right of redemption or derive a benefit from it, are circumstances which, in connection with other facts, may tend to show that the parties intended to make an absolute appropriation of the goods to raise a fund to pay debts, and so to make an assignment. Box v. Goodbar, ante p. 6. But they are not conclusive of that intent. Neither the possession of the goods, nor the unreasonableness of the debtor’s expectation of paying the debt at maturity, nor his intent never to pay, is the criterion for distinguishing a mortgage from an assignment. The controlling guide, according to the previous decision of the court, is, Was it the intention of the parties, at the time the instrument was executed, to divest the debtor of the title and so make an appropriation of the property to raise a fund to pay debts ? Richmond v. Miss Mills, 52 Ark , 30; Fecheimér v. Robertson, 53 ib., 101 ; Box v Goodbar, ante p. 6.
If the equity of redemption remains 'in the debtor, his-title is not divested, and an absolute appropriation of the property is'not made. In arriving at the intent of the parties, therefore, the question is, not whether the debtor intended to avail himself of the equity of redemption by payment of the debt, but was it the intention to reserve the equity ? If so, the instrument is a mortgage, and not an assignment.
Affirmed.