majority">McCulloch, C. J.

Plaintiff, Mary E. Richards, while residing at Muskogee, I. T., in the year 1907, executed a mortgage to defendant Prall on certain lots which she owned in the town of Hartford, Ark., to secure the payment of a promissory note for $250, executed to defendant on the same date. She instituted this aotion in the chancery court of Sebastion County to restrain defendant from foreclosing the mortgage as threatened, and to remove it as a cloud on her title. She alleged that she was not indebted to defendant in any sum, that the note and mortgage were executed to defendant solely to secure him in making bond for the appearance in court of one Scanlan, who was then confined in jail at McAlester, I. T., charged with a misdemeanor under the statutes of the United States, and that said Scanlan complied with the bail bond in all respects by appearing in court, and that the case against him was dismissed; that defendant was about to foreclose the mortgage pursuant to the power of sale contained therein, and would do so unless restrained.

Defendant answered, admitting that the note and mortgage were executed to secure him in making bond for the appearance of Scanlan as alleged, but stated further that they were executed to secure a debt of plaintiff to defendant for the purchase price of merchandise which he had sold to her. The case was tried on this issue, and the chancellor found in favor of plaintiff, and granted her the relief prayed for. The mortgage introduced in evidence recites that it was given only to secure a promissory note of $250 and no other indebtedness or liability.

We think that the testimony sustains the finding of the chancellor; at least, the preponderance of the testimony is not against the finding. It fails to establish any indebtedness of plaintiff to defendant for the price of merchandise or otherwise, except her obligation to answer to him for the appearance in court of Scanlan; but that obligation has been fully discharged by Scanlan’s appearance in court and the dismissal of the charge against him. The conditions of the mortgage have been fully performed, and the defeasance becomes effective. A wrongful foreclosure of the mortgage would have placed a cloud on plaintiff’s title, and equity affords relief to prevent that. 1 High on Injunctions, § 442.

There is much incompetent testimony in the record, but we indulge the presumption that the chancellor was not influenced by it, and based his finding upon competent testimony, which we conclude sustains the finding. Niagara Fire Ins. Co. v. Boon, 76 Ark. 153.

It is insisted that defendant is entitled to foreclose the mortgage to pay small amounts expended in procuring Scanlan’s release. This did not, according to the preponderance of the testimony, fall within plaintiff’s obligation. Besides, the testimony does not establish the fact that defendant paid out anything to procure Scanlan’s release.

Upon the whole, we are convinced that the chancellor’s decree is correct, and the same is in all things affirmed.

Citation profile

Relationships

How this case has been treated — in progress