{ "id": 1532263, "name": "Smith v. Joyce", "name_abbreviation": "Smith v. Joyce", "decision_date": "1914-12-21", "docket_number": "", "first_page": "61", "last_page": "65", "citations": [ { "type": "official", "cite": "116 Ark. 61" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "68 Ark. 438", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "93 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "24 Atl. 831", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "68 Ark. 443", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "43 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894503 ], "opinion_index": -1, "case_paths": [ "/ark/43/0504-01" ] }, { "cite": "87 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "81 S. W. 414", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "73 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1503957 ], "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/ark/73/0589-01" ] } ], "analysis": { "cardinality": 496, "char_count": 8501, "ocr_confidence": 0.462, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34598001659556216 }, "sha256": "2923e8f7228666035196aae1dd32965a09d6b8308a8b34f6bbce1438f85e04d4", "simhash": "1:02e986361fbca7c1", "word_count": 1493 }, "last_updated": "2023-07-14T15:16:08.473761+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Smith v. Joyce." ], "opinions": [ { "text": "Smith, J.,\n(after .stating the facts). This action was instituted under sections 1694 and 1695 of Kirby\u2019s Digest, which, so far as they are relevant here, read as follows:\n\u201cSection 1694. If any person shall bona fide sell any tract or parcel of land, and shall make any written deed, conveyance, bond or other instrument in writing, assuring the title of suc'h land to the purchaser thereof, and shall afterward sell and convey such tract of land to any subsequent purchaser, whether the subsequent purchaser have knowledge of the previous sale or not, such person shall >be deemed guilty of a misdemeanor,\u201d and fined not less than twice the value of the land so sold.\n\u201cSection 1695. Any person who shall'violate * * * the preceding section shall, in addition to the above fine * * * pay to every person so by him injured or defrauded by any of the means therein mentioned, double the damages sustained by him, to be recovered by proper action.\u201d\nThe briefs contain an interesting discussion of the question whether the above statute is penal or merely remedial.\nAppellee concedes that he could not recover if this statute was construed to be penal, and not remedial, but he insists that it is remedial in its nature and should receive a liberal construction to accomplish the purposes intended by the Legislature in its enactment.\nBut we think there can be no recovery in either event. There is no allegation here that appellant is insolvent, nor is there any allegation of any offer of performance on appellee\u2019s part to which appellant can not respond, and, consequently, there is no allegation that appellee has been injured cr defrauded, unless the mere execution of the mortgage under the 'circumstances above stated constitutes an injury, or a fraud, within the meaning of the statute.\nAppellee insists that a mortgage is such a conveyance of land as is comprehended within the phrase, \u2018 \u2018 and shall afterward sell and convey such tract of land to any subsequent purchaser.\u201d But we do not agree with this contention. A mortgagee is not a purchaser in the strict legal sense of that term. It is true that this court said in the case of Perry County Bank v. Rankin, 73 Ark. 589, 592, that, \u201cIt is the rule in this State that a mortgage deed conveys to and vests in the mortgagee the legal title to the property described, subject to be defeated by payment of the debt.\u201d But in whatever form it may have been executed, if it is in fact a mortgage, it is always subject to be defeated by the payment of the debt which it secures. In fact, this is a distinguishing and essential characteristic of a mortgage.\nThe words, \u201csell and convey,\u201d are defined in Words & Phrases, and it was there said: \u201cThe \u2018power to sell and convey\u2019 does not confer the power to mortgage.\u201d And, further, \u201cA trust with power to sell out and out will not authorize a, mortgage, and a trust for sale, with nothing to negative the seller\u2019s intention to convert the estate absolutely will not authorize the trustee to execute a mortgage. \u2019 \u2019 A number of cases are there cited in support of that text.\nIn the case of St. Louis Land & Building Assn. v. Fueller, 81 S. W. 414, the Supreme Court of Missouri had occasion to define the phrase, \u201csell and convey,\u201d and it was there said:\n\u201cThey (counsel) urge that the terms of the grant of power, \u2018to sell and convey,\u2019 should have been followed by the terms, \u2018in fee.\u2019 This suggestion is answered by the fact that the terms, \u2018 sell and convey, \u2019 when applied to real estate, mean, in the absence of appropriate expressions in the instrument itself limiting and restricting such general acceptance of the meaning of such terms, a conveyance in fee; hence it follows that the addition of the words \u2018in fee\u2019 would give no additional force to the words used in the deed before us. The intention to authorize the conveyance of the entire estate, by the use of the terms in the grant of power, \u2018to sell and convey,\u2019 is made clear when considered in connection with the statute, which expressly declares the nature and character of title vested by a conveyance of real estate. The learned counsel for respondents very aptly 'applied the statute.\u201d It is stated thus: \u201cThe Groff deed is dated February 4, 1874. The statute then provided that \u2018 * # \"* every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.\u2019 That statute is in full force and effect today. 1 Eev. St. 1899, p. 1096, section 4590.\u201d\nThe above section of the Missouri statutes which is quoted in part is so similar to section 733 of Kirby\u2019s Digest, which section relates to the construction of conveyances, as to suggest that, if our statute was not copied from the Missouri statute, it was, at least, drawn to conform with it.\nWe conclude, therefore, that a mortgage is not such a conveyance, by one who has executed a previous agreement to convey, as subjects the mortgagor to the penalty of the statute.\nAs has been said, there is no allegation of any tender of performance on appellee\u2019s part, nor of any refusal or failure to respond on appellant\u2019s part; nor that appellee has been injured nr defrauded, except by the fact of the execution of the mortgage.\nThe judgment of the court Nelow is, therefore, reversed and the cause will be remanded with directions to sustain the demurrer.", "type": "majority", "author": "Smith, J.," } ], "attorneys": [ "M. P. Huddleston, Bobt. E. Fuhr and J. M. Futrell, for appellant.", "B. P. Taylor, for appellee." ], "corrections": "", "head_matter": "Smith v. Joyce.\nOpinion delivered December 21, 1914.\nMortgages \u2014 effect on title \u2014 contract to sell \u2014 penalty.\u2014A mortgage is not suck a conveyance !by one who has executed a previous agreement to convey the same property, as will subject the mortgagor to the penalty denounced hy Kirfby\u2019s Digest, \u00a7 \u00a7 1694 and 1695. \u2022\nAppeal from'Greene Circuit Court, First Division; J. F. Gautney, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nThe complaint in this cause alleged that, on March 1, \u00cd913, appellant executed to appellee a bond for a title, a copy of which was attached to the complaint and made an exhibit thereto, in which he agreed to convey to appellee certain lots in the .city of Paragould, Arkansas, on condition that appellee should pay Mm $25 cash and twenty-five notes, of $15 each, the first to be due on April 1, 1913, and the balance to be due on the first of each subsequent month, and one note for $6.25 due May 1, 1915. The total sum to be paid amounted to $406.25. Appellee paid $25 in cash, according to the terms of this contract, and, according to the allegations of the complaint, made other payments, amounting, in all, at the time the suit was brought, to $43.18.\nThere was no allegation that appellee had complied with his contract at the time the suit was filed further than to make, the payments above stated.\nThe complaint further alleged that on the 26th of May, 1913, .appellant and his wife made, executed and delivered to one C. A. Mack a mortgage conveying said lots as security for a loan of $1,000, made appellant by said Mack, who, at the time, had no knowledge of plaintiff\u2019s equity, and that this mortgage had been duly recorded in Greene County, and had been executed without the knowledge or consent of appellee.\nIt was not alleged that appellee had lost anything by reason of the mortgage that appellant had executed to Mack, nor was there any allegation of appellant\u2019s insolvency.\nAppellee prayed judgment for $86.36, which was twice the amount of the payments made by him under his bond for title. Appellant filed a demurrer to this complaint, which was overruled by the court, and, appellant having refused to plead further, final judgment was rendered .against him, and he duly saved his exceptions and prayed an appeal, which was granted.\nM. P. Huddleston, Bobt. E. Fuhr and J. M. Futrell, for appellant.\n1. Sections 1694-5 of Kirby\u2019s Digest are highly penal, and should be strictly construed. 87 Ark. 411.\n2. The complaint stated no cause of action. There is no allegation that Joyce had complied with his contract, and a failure to do so worked a forfeiture ipso facto. Appellant did not \u201csell and convey\u201d \u2014 he merely mortgaged his equity in the land, as he had the right to do.\nB. P. Taylor, for appellee.\n1. The violation of the statute constitutes a fraud.\n2. In Arkansas a mortgage transfers the legal title \u2014hence it is a sale and conveyance. 43 Ark. 504; 65 Id. 132; 66 Id. 572; 73 Id. 589.\n3. This is not a highly penal statute. 68 Ark. 443; 24 Atl. 831; 176 111. 489; 42 L. K. A. 804; 93 Ark. 45. The statute is remedial. 68 Ark. 438, and cases supra." }, "file_name": "0061-01", "first_page_order": 77, "last_page_order": 81 }