Allender v. Evans-Smith Drug Co.

Clayton, J. In this case there are nine specifications of error filed with the brief. Without setting them out in full, we deem it sufficient to say that they present for our consideration but three questions of law. It is contended First, that the agreement to execute the mortgage was without consideration, because it was to be executed to secure the payment of a pre-existing indebtedness without other or further consideration; second, that the agreement, [632] being oral, and for the sale of an interest in and concerning lands, tenements, and hereditaments, and without part performance on the part of the appellee, it was void by virtue of the statute of frauds; and, third, that the agreement is so uncertain and indefinite that the court cannot decree specific performance. As to the first proposition, it is the law that a mortgage executed to secure a pre-existing indebtedness, without other consideration, is good and valid as between the parties to the instrument. It is only when the rights of third parties intervene ohat under such circumstances the mortgagee is held not to be a purchaser for value in good faith. Jones, Mortg. (5th Ed.) § 460, and authorities cited; Jones, Chat. Mortg. § 81; Bank vs Whitney, 103 U. S. 99, 26 L. Ed. 443; Hill vs Yarbrough ( Ark.) 35 S. W. 433. Aud therefore, as the controversy here is between the parties to the agreement only, the contention of the appellant cannot be successfully maintained. Besides, in this case there was, by the agreement, an extension of time for paymént of the debt which has always been held to be a sufficient consideration to support a mortgage. As to the second proposition, we are .of the opinion that there was a part performance of the agreement. The contract, in substance, was that the defendant should have the payment of his debt to the plaintiff, then due, postponed to a day certain, at which time he would pay it; and, if he should then fail to pay, he would execute a mortgage upon his residence to secure it. This contract was wholly performed upon the part of the plaintiff. He had done all he promised to do. The time for payment of the debt had been extended. Plaintiff had made no effort to collect it. His forbearance was complete, and the defendant had derived all of the advantages possible to be obtained, or which could have been legally in contemplation, under the agreement. It is true that the extension of the time for payment [633] was short, but not so short but that the defendant found in the interim ample time to concoc and pub inb:> ex jjutioa a scheme by wnich, through the instrumentality of an assignment for the benefit of his creditors, with preferences, the plaintiff is wholly cut off from the collection of this debt, or any part of it, unléss the courts will enforce this agreement-We think the agreement, although oral, is not, in equity’ within the operation of the statute of frauds; and, in accordance with the equitable maxim that “that which is agreed to be done will be treated as having been done, ” the plaintiff is entitled to have the judgment below, fixing a lien upon the premises, and ordering them sold to satisfy the debt af firmed. Beach, in his work entitled “Modern Law of Contracts” (volume 1, § 360), after discussing generally liens arising from agreements to give mortgages, says: “It is not necessary that such transactions or agreements as to lands shall be in writing in order to take them out of the operation of the statute of frauds, for two reasons: First, because they are completely executed by at least one of the parties, and no longer executory; and, second, because the statute, in its own terms, does not affect the powers which courts of equity have always exercised to compel the performance of such agreements.” Mr. Jones, in his work on Liens (volume 1, § 77), uses the following language: “An agreement on sufficient consideration to give a mortgage on specific property creates a lien upon such property, which takes precedence of the claims of promisor’s general creditors and claims of subsequent purchasers and incumbrancers with notice.” The same author, in his work on Mortgages (section 163), says: “An agreement to give a mortgage or security on certain property, not objectionable for want of consideration, is treated in equity as a mortgage, upon the principle that equity will treat that as done which, by agreement, is to be done. This doctrine has been asserted frequently, both in England and this country. ” Pom, Eq. Jur. 380; Adams, Eq. Jur. 83; Story, Eq. Jur. 123; Hicks vs [634] Turck (Mich.) 40 N. W. 339; McCarty vs Brackenridge (Tex. Civ. App.) 20 S. W. 997; Irvine vs Armstrong (Minn.) 17 N. W. 343; King vs Williams (Ark.) 50 S. W. 695. The third contention, — that the agreement is too uncertain and indefinite to be enforced, -and that it is in the alternative, — we think, is not well founded. The agreement that on a certain day in the future the defendant would pay the debt, or, in default thereof, would execute a mortgage on certain specific premises is certainly definite and certain, and is to be taken as an entire contract; and upon the defendant’s refusal to pay the debt, as he had agreed to, the plaintiff was remitted to his remedy for the total noncompliance with the contract. In Ice Co. vs. Meader, 18 C. C. A. 451, 72 Fed. 115, it was so held, the court saying: “It is insisted, however, that the contract of the parties in this case was in the alternative, — that the purchaser had the right either to execute the mortgage in pursuance of the terms of the original contract of May 17th, or that he might secure the debt by personal indorsement satisfactory to the vendor. It seems a sufficient reply to this to point out the fact that the defendant company made no offer of personal indorsement, satisfactory to the plaintiff or otherwise, and the plaintiff was therefore remitted to such remedy for the total noncompliance with the contract as the doctrine above stated will afford him. With this view he brings his bill, not strictly to enforce the specific performance of the contract, but rather to have the court declare, its legal effect, considered in connection with the further fact that the plaintiff has performed all that he agreed to do, and defendant, while receiving and accepting its machine, has not only not paid the 'debt, but even refused to give evidence of the debt which it had promised. ” Finding no error, the judgment of the court below is affirmed. Gild and Raymond, JJ., concur.