Hudgins v. Morrow

Cockrill, C. J.

I. Mortgage: Redemption.

Suit was begun, by the appellees, in the Jefferson circuit court in chancery, in October, 1884, to redeem lands thát had been sold under a deed of trust with power of sale and purchased'by the appellant in March, 1880, and to cancel the deed executed by the trustee to him as purchaser. The trust deed was executed by W. T. Morrow in the spring of 1878, to secure a debt of ¿44$, due to one Meyer, evidenced by a note maturing in the winter of the same year. The note was not paid at maturity and the trustee advertised the lands for sale in accordance with the terms of the deed, but before the day of sale arrived Morrow, the grantor, died, and the sale was postponed at the instance of the administrator of his estate. Subsequently the lands were again advertised by the trustee and the sale made at which the appellant became the purchaser, his bid being $55o, which was paid and applied to the satisfaction of Meyer’s debt and the costs of executing the trust. The lands were worth about $1600 at the time of sale.

The appellees are the heirs at law of Morrow, and some of them were still minors at the institution of this suit.

The court granted the prayer of the complaint, found that the rents received by the appellant had reimbursed him for all expenditures made, canceled his deed and decreed that the appellees be let into possession of the lands.

The record presents nothing upon which the decree can be sustained.

At the date of the execution of the deed of trust there was no provisión in our law for redemption from a sale made by a trustee under such a deed. The act of March 17, 1879, (Mansf. Dig., sec. 4759,) confers the right of redemption in such cases, but in the case of Robards v. Brown, 40 Ark, 423, it was ruled that this act could not be held to apply to instruments executed before its passage, and that case is decisive of this upon the question of redemption.

2. Power not revoked by gagor. r’

No fact is shown that furnishes a reason for canceling the deed executed by the trustee to the appellant. The power of sale contained in the mortgage executed by Morrow — for the deed was in effect only a mortgage — being coupled with an interest in the lands, could not be revoked by him, and his death did not defeat or suspend the right to execute the power. Connors v. Holland, 113 Mass., 50 ; 2 Jones Mortg., sec. 1792.

when^set^zfside o°frpricedequacy

The closest scrutiny of the facts does not disclose any circumstance of fraud, unfairness or irregularity about the sale, or any abuse by the trustee of the confidence reposed in him. The inadequacy of the price paid for the lands is left alone to support the decree. But that fact has significance only when taken in connection with others tending to show bad faith, mistake, an undue advantage taken of the ignorance or weakness of the persons whose property rights will be affected by the sale, or some other of the grounds of equitable relief. Fry v. Street, 44 Ark., 502; King v. Brooken, 122 Mass., 122 ; Klein v. Glass, 53 Texas, 37 ; Kline v. Vogel, 11 Mo. App., 211 ; Graffam v. Burgess, 117 U. S., 180 . None of these is made to appear.

Reverse the decree and dismiss the complaint.