64 Ark. 104 | Ark. | 1897
(after stating the facts.) We are not able to agree with the contention that appellants are estopped from asserting their right to redeem the land in controversy. An estoppel must in general have reference to facts, past or existing: “A statement concerning future facts would either be a mere expression of opinion, or would constitute a contract, and be governed by the rules applicable to contracts.” 2 Pomeroy’s Equity, § 808. The evidence does not, in our opinion, show that the appellants made an agreement that they would not redeem, and the facts upon which the right to redeem existed were as well known to appellees as they were to appellants. There could have been no misrepresentation or concealment concerning such facts sufficient to work an estoppel, and none is claimed. The evidence, we think, clearly shows that the agreement between Ellingwood and the appellants had reference only to the possession of the land, and that no agreement was made concerning the right to redeem, for the reason that both parties were of the opinion that no right to redeem existed. The mere fact that appellants consented that Filing-wood might take possession, of the land before the expiration of the year allowed for redemption does not. estop them from exercising their right to redeem. The mortgage debt being due and unpaid, the mortgagees and those holding under them had the right to possession, subject to the right of the mortgagor to redeem and compel an accounting for the rents. 2 Jones, Mort. (5th Ed.), §§ 1114, 1215. If it be true that the appellants knew that Ellingwood intended to make improvements upon the premises under the belief that he was the absolute owner thereof, and made no objection, it was because both parties were ignorant of the fact that the right to redeem existed. Ellingwood may be entitled to receive pay for the improvements, but the fact that they had been made does not cut off the right to redeem.
It is further contended that the decree must be affirmed for the reason that the evidence does not show that the appellants have tendered the full amount of the debt secured by the mortgage aud interest thereon. But this contention cannot be sustained. It is not denied, but expressly admitted, that, within one year after said sale under the power contained in the mortgage, the appellants duly tendered the amount for which the property sold, with interest and costs of sale. This was a sufficient tender. Wood v. Holland, 53 Ark. 69. As to the remainder of the mortgage debt, it was sufficient to offer in the complaint to pay the amount found to be due. This court has heretofore decided that the allegations of the complaint on this point are sufficient. Wood v. Holland, 57 Ark. 198; 3 Pomeroy, Eq. Jur., § 1219. But to determine the amount, if any be still due upon the mortgage, it is necessary to state an account between the parties, and for that purpose a reference to a master is necessary. If it should appear, upon a statement of an account between the parties, that appellants have not tendered an amount sufficient, when taken in connection with the rents, to pay off the whole mortgage debt, the complaint should not be dismissed, but the appellants should be given a reasonable time to pay the balance found due. 3 Pomeroy, Eq. Jur. (2d Ed.), § 1227.
For the errors indicated, the decree of the White chancery court is reversed, and the cause remanded for further proceedings.