majority"> Hart, J.,

(after stating the facts). It is the settled doctrine of this court that, whether any particular transaction of the kind involved in this suit amounts to a mortgage, or to a sale with a contract to repurchase, must, to a large extent, depend upon its own facts and circumstances. The question turns upon the real intention of the parties as shown upon the face of the deed or as disclosed by extrinsic evidence. In all cases parol evidence may be introduced to show that a deed absolute on its face was intended as a mortgage; but the evidence must be clear, satisfactory and convincing. Matthews v. Stevens, 163 Ark. 157, and cases cited. In this connection it may be stated that the declarations of the grantor as to Ms interest in the land are admissible against all who claim under him. Jefferson v. Souter, 150 Ark. 55.

Tested by these well settled principles of law, we do not think that the chancellor erred in holding that appellants had not established their case by clear, satisfactory and convincing evidence. The testimony is in direct and irreconcilable conflict.

Counsel for appellants point out that, while Gray-son is corroborated by the testimony of his brother, by virtue of their relationship both are interested parties. The same thing is true of the testimony of Walter Bolden. He is directly interested in the result of the lawsuit, and the record shows that he was the moving party in bringing the suit. It is true that his testimony is corroborated by two or three witnesses, who said that Grayson had told them he had promised to convey the land back to Missouri Bolden and her children when the mortgage indebtedness was paid off. One of these witnesses, however, placed his conversation with Grayson in this respect at a time one or two years before he gave his testimony in his direct examination; but, in his cross-examination, he stated that the conversation had been had three or four years ago. Now this testimony was given in May, 1923, and the deed in question was executed in May, 1921. Thus it will be seen that, in his cross-examination, he laid the time of the conversation with Grayson at a period of time a year or more before the deed in question was executed.

On the other hand, several witnesses for appellee testified that Missouri Bolden had told them that she had conveyed the land to Grayson. She did not die until January 15, 1923, and there was some oil excitement in the neighborhood during the fall of 1922, and leases began to be of some value during that fall. Notwithstanding this fact, Missouri Bolden did not make any claim to the land during her lifetime. The record shows that she was in bad health at the time she executed the deed in question, and that the land had no value at that time for oil and gas leases. The land was of small value for agriculture, and it is fairly inferable, from all the facts and circumstances, that Grayson intended to let Missouri Bolden live on the land as long as she would pay the taxes and a small rental for it. The deed was not executed to him until the 27th day of May, 1921, and he agreed to let her stay there that year in consideration that she would pay the taxes on the land. He testified further that he agreed to let her stay there during the year 1922 at a rent of $40, and that she paid the rent in the fall of 1922. His testimony in this respect is not contradicted.

The result of our views is that the finding of fact made by the chancellor is not against the preponderance of the evidence, and the decree will be affirmed.

Citation profile

Relationships

How this case has been treated — in progress