Richardson & May v. Hamlett

33 Ark. 237 · Supreme Court of Arkansas · 1878

Facts

Weisiger and Lindsey sold land to Morgan, who gave notes and agreed to execute a mortgage, but never did. Plaintiffs, assignees of an unpaid note, sued to enforce a lien after Morgan's death, but the trial court dismissed their complaint on demurrer.

Issue

Does the failure to execute a promised mortgage, which was agreed upon in a land sale, preclude the vendors or their assignees from enforcing an equitable lien for the unpaid purchase money?

Holding

Yes, the failure to execute the mortgage does not preclude an equitable lien; the trial court erred in sustaining the demurrer, and the case is reversed and remanded.

Rule

Equity considers as done that which ought to have been done, meaning parties' rights are the same as if a promised security (like a mortgage) had been executed, even if it was not.

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Case brief last reviewed 2026-01-16. Prepared by CaseReader from the published opinion.