112 Pa. 456 | Pa. | 1886
delivered the opinion of the court, May 24th, 1886.
We agree with the Master and the court below that the attempt to change the prima facie character of the deed of Pettibone to Bonnell, and by oral testimony convert it into a mortgage, has not been successful. It may be admitted that there are many things apparent on a critical examination of the evidence which would seem to favor the contention of the appellant, but when the whole body thereof is considered together, such a conclusion is seen to be illusory. To convert a deed, absolute on its face, into a mortgage by parol testimony, such testimony must be clear and specific, of a character such as will leave in the mind of a chancellor no hesitation or doubt, and failing this, the effort to impeach the legal character of the deed must be regarded as abortive. A mortgage is essentially a pledge or security, and it is distinguishable from a trust in this only, that the property described in it is to revert to the mortgagor on the discharge of the obligation for the performance of which it was pledged: Allegheny Railroad & Coal Co. v. Casey, 29 P. F. S., 84. So we have it said in Danzeizen’s Appeal, 23 Id., 65, that where the intent is.merely
This, however, affects not the character of the instrument itself, for if it be not a vadium or pledge, whether living or dead, it is not a mortgage. It must be accompanied with a defeasance, otherwise it is a deed absolute or in trust. If, therefore, the alleged oral defeasance has not been proved, if it appears that Bonnell was not' merely to hold the land conveyed as a pledge, but was to have the power to sell it for the purpose of paying the indebtedness of Lance to him, and the liens against the property, it is clear that the prima facie character of the. deed is unaffected, and the trust, if any, attaches to the proceeds. It would also follow, that if Bonnell had thus, in himself, the power to sell, his vendee, the Lehigh and Wilkesbarre Coal Company, must be regarded as vested with an absolute estate, and cannot be obliged to account. But that he had such power the evidence clearly demonstrates. The letter from Bonnell to Lance, previous to the conveyance from Pettebone, setting forth his, Pettibone's proposition, and inquiring whether, in case of his purchase of the property, he could sell it for a sum not less than $300,000, of itself shows what Bonnell’s intention was in the acquisition of the land in controversy, and this same intention is also expressed in his letter to Mr. McClintock. But that the design of all the parties was that Bonnell should carry the property on his own credit until he could dispose of it by an advantageous sale, is clear from their subsequent conduct. The proposition to the president of the Wilkesbarre Coal and Iron Company, -as contained in the letter of Bonnell and Lance, dated June 23d, 1871, and the consummation of that proposition by the conveyance to the said company of the breaker, houses, improvements, and personal property, together with a lease of the coal, executed by Bonnell and witnessed by W. W. and W. L. Lance, can be explained on no other hypothesis than that above stated. Beside this, we have from the testimony of W. W. Lance the fact that the deeds for the surface lots, sold by him, were sent to Bonnell
The decree of the Court of Common Pleas is 4 affirmed at the costs of the appellant.