196 S.W.2d 747 | Ark. | 1946
This suit was instituted in the lower court by appellee to require appellants to perform an agreement, as to redemption of appellee's home from foreclosure, which appellee alleged was made by appellee and Frank Schlumpf, Sr., holder of a mortgage on the property. From decree of the lower court awarding appellee the relief prayed by him appellant prosecutes this appeal.
In his complaint appellee alleged that he was the owner, subject to the rights of appellants, of a certain dwelling house, with appurtenant lots, in the city of Little Rock, Arkansas, wherein appellee had lived since 1902; that he had given a first mortgage on this property to J. T. J. Fizer and a second mortgage thereon to Frank Schlumpf, Sr., father of appellant, H. J. Schlumpf; that Fizer began a suit to foreclose his mortgage, which, owing to the depression then prevailing, would have resulted in Schlumpf's lien, as well as the equity of appellee, in the property being wiped out; that while the suit *454 was pending it was agreed between Frank Schlumpf, Sr., and appellee that if the Fizer mortgage could be bought for $500 less than due thereon Schlumpf would purchase it and allow appellee to redeem the property by making monthly payments until the entire amount of Schlumpf's outlay, and the debt owing to him, together with interest, and his advances for taxes, insurance and repairs, should be repaid to him; that in pursuance of this arrangement appellee assisted Schlumpf in purchasing the Fizer claim at a discount of approximately $500, and, acting as attorney for Schlumpf without fee, filed an intervention for Schlumpf in the foreclosure suit; that in accordance with the agreement Schlumpf became purchaser at the foreclosure sale for, $3,575, which was almost exactly the amount he paid Fizer, and the balance due Schlumpf on his mortgage and the costs, and received deed from the commissioner; that appellee thereafter continued to occupy the premises, and, as had been agreed upon, made monthly payments to Schlumpf of $25 for the first six months, then $30 per month for twenty-four months, and thereafter, up to the death of Frank Schlumpf, Sr., for twenty-three months at the rate of $40 per month; that Schlumpf died on July 26, 1943, having willed the property to his son, the appellant, H. J. Schlumpf; that after the death of said appellant's father appellee continued to make to said appellant the monthly payments of $40 each for twenty-four months; that, relying on the agreement, he had made repairs on the property in December, 1944, at a cost of $250; that, though appellee was ready, able and willing to carry out his agreement and pay off the entire balance due by him, said appellant had refused to carry out the agreement; and the prayer of appellee was for a decree ordering specific performance of the said contract. Mrs. Julia Schlumpf, wife of H. J. Schlumpf, was afterwards made defendant.
Appellants answer was a denial of all allegations of the complaint.
Appellee testified to substantially the facts set up in his complaint. The effect of the testimony of appellants *455 was a denial of any knowledge of the alleged agreement between appellee and the elder Schlumpf. There were shown by the evidence some circumstances tending to support the contention of appellants that appellee, after the foreclosure, remained on the property as tenant, first of the elder Schlumpf and later of the son, and, on the other hand, circumstances were proved which indicated that appellee's version of the matter was true. No witnesses, except the three parties to the suit, the mother of appellant, and the clerk of the probate court, who introduced certain records, testified at the trial.
Appellant, for reversal of the lower court's decree, urges these grounds:
I. That the oral contract relied on by appellee is void as contravening the statute of frauds.
II. That appellee should have been denied relief because he failed to pay or tender the entire mortgage indebtedness.
III. That appellee failed to make any substantial payment, or to pay the taxes and insurance, or to make any substantial improvement on the property.
IV. That the evidence adduced to establish the alleged oral contract did not meet the requirements of law as to oral testimony necessary to prove a trust or agreement as to land.
V. That appellee is barred by laches and estoppel.
By 9473, Pope's, Digest, the mortgagor is given the right, where the mortgage is foreclosed by proceeding in chancery court, to redeem within one year from the sale; *456 and this is the privilege which appellee waived in the face of the mortgage. But, in addition to the right of redemption created by said statute, every mortgagor has the right to redeem his property by payment (or by agreement made with the mortgagee) at any time up until the date fixed in the foreclosure decree. In the foreclosure decree involved herein appellee was given thirty days from the date of the decree to pay off the amount adjudged to be due from him. According to the testimony of appellee, the agreement was made with Schlumpf long before the decree was rendered; so that at the time said agreement was made appellee had the unquestioned right to pay off the debt and redeem his property; and therefore the asserted agreement was one to redeem, not to repurchase the property.
In 49 Am.Jur., p. 530, this statement is made: "The question has frequently been presented as to the effect of an oral agreement to enlarge the time for redemption from a sale under a mortgage or other lien on real property, and it has been held in many cases that an oral agreement to permit redemption or to extend the period for redemption after the expiration of the statutory period is not within the statute of frauds, such agreement not being regarded as a contract for the sale of land or a transfer of title thereto, and is therefore binding upon the parties, particularly where such an agreement has been acted on so far that the parties cannot be placed in statu quo."
Dealing with a similar question, the Kentucky Court of Appeals, in the case of Webbs v. Hynes, 9 B. Monroe, 388, 50 Am. Dec. 515, said: "The statute of frauds has no application to a contract of this character, which is not for the sale of land, or the transfer of title thereto, but merely to prolong the time, for the exercise of the right of redemption."
In the case of Turpie v. Lowe,
The Supreme Court of Illinois, in the case of Ogden v. Stevens,
We said in the recent case of Wood, Admr., v. Conner,
"In the case of Coates v. Dortch,
"In the case of Webb v. Vercoe,
"Among other cases cited by the annotator are our cases of McNeil v. Gates,
"Other cases are cited by the annotator to support the statement that `upon a somewhat different theory, the following cases hold a purchaser at an execution, tax, or foreclosure sale who has entered into an agreement to permit redemption or extend the time for redemption, and thereby cause the holder of the right of redemption to postpone the exercise of that right to a future period, cannot rely upon the statute of frauds to defeat the effect of his contract, since this would be permitting the statute, which was designed to prevent fraud, to be used as an instrument for its promotion.'
"These cases support the holding that the statute of frauds does not defeat Conner's right to the relief prayed. As the agreement made was that the lands would not be sold in consideration of the additional security and the agreement that Wood should collect and credit the rents on the mortgage debt, yet, notwithstanding this agreement, the mortgage was foreclosed, then and in that event a constructive trust arose. Lewis v. Bush,
In the case of Littell v. Jones,
We conclude that the contract relied on herein by appellee was not within the ban of the statute of frauds.
No error appearing, the decree of the lower court is affirmed.
MINOR W. MILLWEE, Justice, dissents.