1 F. Cas. 896 | U.S. Circuit Court for the District of Massachusetts | 1872
The testimony was full to the point that the deeds were given as security, and, if so, the complainants must be permitted to redeem, and they are entitled to an account as prayed in the bill, as repeated decisions of the federal courts have established the rule that oral evidence is admissible for the purpose of showing that' a deed absolute on its face was intended as a mortgage, and that the de-feasance was omitted from mutual confidence between the parties. Wyman v. Babcock, [Case No. 18,113;] Babcock v. Wyman, 19 How. [60 U. S.] 299; Russell v. Southard, 12 How. [53 U. S.] 139. Argument to support that rule of law is unnecessary, as it is well settled by- authority; but the-evidence to prove the agreement ought to be clear and satisfactory, as the rule is one of an exceptional character in the law of evidence. Unquestionably the issue in this case depends entirely upon the credit to be given to the party who made the conveyances, in a case where he is not corroborated by any act or word done or spoken by the other party.
Attempt is made to show that he. is corroborated by certain circumstances in the case, but the circumstances relied upon are too remote or too slight, in the judgment of the court, to have any substantial weight in that regard. They are as follows: 1. That friendly relations had existed between the parties for many years; but it is difficult to see how that fact tends to show that it was agreed between them that a deed absolute on its face should be held merely as a security for money loaned, and. that the grantor might redeem the same at any future period of time during his natural life. Woodman admits. that he was buying and selling land-warrants and lands during that period, and it is not unreasonable to suppose that he would be as ready and willing to sell to a friend as to a stranger, especially as it appears that the lands in question cost him only about one dollar per acre. Having purchased the land cheaply, it is quite as probable that he might be willing to give his friend a good bargain for prompt payment, as that his friend should agree to allow him an indefinite and unlimited right of redemption in the lands. 2. That the grantee paid the taxes. The only evidence of that fact is found in his own testimony, and if credit is not given to the witness, the fact is not established. Payment of the taxes, if made by the grantor, could have easily been proved, but the fact, if established, would not amount to much, as persons holding Western lands frequently employ agents to pay their taxes. 3. That the grantee retained the possession of thu original deeds. The fact as shown in evidence is, that the grantee did not have the deed first described. On the contrary, it was sent to the registry of deeds, where it remained for a long time. True, he states in his deposition that the deeds were returned to him as soon as they were recorded, and that they were retained by him, and remained in his possession until the appointment of his assignees, but it appears from the deposition of Augustine Jones, that Woodman, in August, 1870, told him that the deeds were in the office of the registry of deeds in Iowa, and that he would send for them, and that at a subsequent time, when the witness called for the deeds, he told him that they had not arrived. Super-added to that, is the letter of Woodman to that witness, dated September S; 1870, in which he states that he has received “the original deed from me to Governor Andrew of the Shelby county’ land, which I enclose to you with, two cancelled agreements” there
Nothing certainly can be inferred in support of the theory of the complainants from the character of the supposed transaction, as the story is quite improbable on its face. It is that the grantor executed an absolute deed of lands, put it on record without the knowledge of the grantee, and kept it a secret from him for the period of three years, without anything to show that the deed was not what it purported to be, both of the parties having experience as convey-ancers, and being well aware of the necessity of a defeasance of some kind, and that the same condition of things was continued four years longer, after the grantee was informed of- the conveyance, without any step being taken by either party to supply the omission. Such men, whether friends or not, would not be likely to leave their rights in such uncertainty. Much strength is added to that view from the fact that the grantor from September, 1866, to March 20, 1S67, was not indebted to the grantee at all, and yet, as the theory of the complainants is, the title was allowed to stand in the name of the grantee as a security for indebtedness, when nothing was due to the party holding the absolute estate. Debtors are frequently negligent in procuring a renewal of an expiring defea-sance in cases where they have been in fault in not making the stipulated payments to their creditor, but when the whole incum-brance is paid, they are much less likely to remain quiet without some written assurance that their rights will be respected.
Administration on the estate of the grantee was first granted to William Rogers, and it appears that the grantor in those deeds was one of the appraisers. Jones was the other, and he testifies that Woodman never, in any of their consultations, stated that his notes to the intestate were in any way secured, and it does not appear that he made any such disclosure when, at a subsequent period, he was appointed administrator de bonis of the same estate. In his deposition he states that when these deeds were executed, he was indebted to the grantee in the sum before mentioned, which was secured by the conveyances, but Jones says that in their conferences as appraisers, he never mentioned that the notes were secured, that he did say, at another time, that the deeds were given to secure the sum of $7,000, and that it was agreed at the time the deeds were made, that they should be security for that sum. Contradictory statements are certainly calculated to impair the credit of a witness, and it is clear that the statement that such an agreement was made at the time the deeds were made, is utterly inconsistent with his testimony given in the case, that the grantee did not have any knowledge of the deeds for three years after they were made and forwarded to be recorded. His statements also to Jones are inconsistent with each other, as at another time he told him that the land conveyed was worth just about §3,000, which was the amount borrowed of the grantee, and that after 1860 he never owed the grantee less than that amount, which cannot be true, if he is to be 'believed, as he testifies that he owed him nothing from September, 1866, to March 20, 1867, as before explained. He is also contradicted in-other particulars. He told Jones he paid the interest regularly, that he took no receipts, and that the notes with the indorsements of interest were all destroyed. Interest was not paid as there stated, as conclusively appears from the letter of the grantee, dated December, 1862, to the grantor, which is an exhibit in the case. When cross-examined in respect to those exhibits, Woodman admitted that they showed that he did not pay interest from December 1, 1862, to March, 1867, a period of more than four years. Important parts of the relation he gives of his dealings, with the grantee, are materially erroneous, if not wilfully false. He claims that his exhibit of those matters is taken from his notebook, and that the statement shows the true-state of his indebtedness, but the administrator produces a large number of notes and checks to the amount of §1,300, to which the witness does not allude in his account, which goes very far to show that no reliance can be placed in his statements as their dealings, or the amount he owed the grantee when the deeds were given. Witnesses are no-longer excluded on account of interest in the event of the suit, but the proof of interest affects the credit of the witness now, as well, as before, the passage of the act not changing the rule in that regard, as it shows that, the witness is not impartial, that he has a motive to color his statements or to suppress-the truth or to state what is false.
Woodman is not impartial, though decreed to be a bankrupt before he testified; as he-was a defaulter to a large amount to the estate of the deceased grantee, from which he-could not obtain a discharge in the bankrupt court. No debt created by the fraud or embezzlement of the bankrupt, or by his de
