Bolin v. Wilkes, 249 F. 705

Bolin v. Wilkes

249 F. 705 | 5th Cir. | 1918

BATTS, Circuit Judge

(after stating the facts as above). [1,2] The general principles upqn which this case is to be decided are too well settled in equity jurisprudence to require extended statement or citation of authority. A conveyance of land, absolute in form, and without an accompanying defeasance, contract of repurchase, or other agreement in writing, may, in equity, by extrinsic apd parol evidence, be shown to be a mortgage, and an incident to a suit for that purpose may be an accounting for fruits and profits received from the property. The admission of 'the parol testimony is held not to contradict or vary a written instrument, and not in contravention of statutes of frauds. The bill is apparently good in substance and form, and, unless there is, something in the statutes of the state of Mississippi which changes the general rules to be applied, it must be held sufficient. Appellees, in discussing the case, make a number of propositions, each of which will be considered.

[3] I and V. Appellees’ first proposition is that:

“No relation of creditor and debtor, or other elements of mortgage, are established.”

*713Not only is it the case that the relation of debtor and creditor must subsist as a prerequisite to the existence of the mortgage, but it is also the case that, when such relation does exist, and a conveyance is made in which the debt is the consideration, and the debt continues to exist, notwithstanding the conveyance, the instrument will be a mortgage, and will have all the legal incidents of a mortgage with clauses of defeasance. In this case each of the pieces of property involved was conveyed to Mrs. Wilkes by a conveyance, absolute in form. Two of the lots were conveyed to her in a foreclosure sale. The .other property was sold at public auction under foreclosure proceedings, and conveyed to the Grenada Bank, and by it conveyed to Mrs. Wilkes. The total amount of the consideration paid by Mrs. Wilkes was the exact amount of the debts due by Schild upon the properties conveyed to her. The allegations of the petition are to the effect that she suggested, before the conveyances were made to her, that she would take up the debts of Schild, provided the debts and the security were consolidated, and that she would so administer the property as to discharge the indebtedness from rents and profits, or permit Schild to pay the amount due at any time in cash. According to the further allegations of the petition, she repeatedly thereafter recognized the existence of the indebtedness, and stated accounts which it would be necessary to discharge before a reconveyance of the property. One of these statements was, in writing, indicating the amount claimed by her, and stating that she would deed the property upon its payment. The existence of a debt is essential to the existence of a mortgage, and the existence of the debt in this case is amply and repeatedly alleged in the bill.

[4, 5] II. The second proposition made by the appellees is:

“Mortgages can be defeated and superseded by agreements subsequently made, by waiver or estoppel.”

The general proposition is that a mortgagor cannot, at the time of the making of the mortgage, by any stipulation or contract therein or contemporaneous therewith, preclude his right to redeem. The nature of the instrument, whether in the ordinary form of a mortgage or in the form of an absolute conveyance, cannot by any contract then or thereafter made, be changed. It is, of course, the case that the right which remains in the mortgagor, whether considered as an equitable right (the legal title being,in the mortgagee), or as ownership of the property (a lien existing for the benefit of the mortgagee), may be disposed of by him. He may,-upon a sufficient consideration and in a proper way, release his equity of redemption to the mortgagee. He may also part with his right of redemption or his title to the land by authorizing, for that purpose, conveyance by the mortgagee to a third person; and it may be that conduct or declarations on his part might amount to waiver or estoppel, precluding the remedy he would otherwise have. Nothing, however, in this bill indicates either an agreement with the mortgagee that his equity of redemption or other rights should pass to her. or the existence of any fact or conduct upon which « waiver of right to redeem, or giving rise to an estoppel to assert the right, might be predicated.

*714As to the land held^by the Grenada Bank, and that held by Thomas, the president of the bank, the petition alleges that, while the title was held under conveyances absolute in form, it was held as security for the debt. While it would have been possible for a conveyance from these trustees to Mrs. Wilkes to have passed the absolute title to the land, this legal result could not follow, except by some instrument executed by Schild, or some conduct upon his part making the act of conveyance his own act; such instrument or conduct evidencing an intent that she should hold title to the land under terms different from those under which it was held by her grantors. No instrument which could have been executed, and nothing which could have been done by Schild, could have destroyed the effect of the continuance of the debt, when, there being no other consideration, the land was conveyed by the creditor who held it as security, in consideration of the taking up of the debt for the benefit of the debtor. While it might have been possible for Schild to have parted with his equity of redemption to Mrs. Wilkes, by having conveyances made by the trustees in whom was the legal title to the land, the circumstances detailed by the bill absolutely negative such an intention and such a result.

The propositions made are applicable to the land secured from the sale by Ham, trustee.

[6] III, X, and XI. Appellees’ third proposition-is:

“Section 4783 of the Code of 1906, prohibits mortgages to he established by parol evidence.”

Section 4783 of the Mississippi Code of 1906 is to this effect :

“A conveyance, or other writing, absolute on its face, where the maker parts with the possession of the property conveyed by it, shall not be proved, at the instance of any of the parties by parol evidence, to be a mortgage only, unless fraud in its procurement be the issue to be tried.”

In the consideration of this section of the Code of Mississippi, a preliminary question might arise as to the power of a state to enact a law of evidence, or other law, which would have the effect of curtailing the jurisdiction of a federal court, or destroying or-affecting the established remedies of such court. Nothing is more firmly established than the rights of courts of equity to declare instruments, absolute on their face, to be mortgages, and to receive parol evidence of the intent and purpose of the parties in' the' execution of such, con- ' veyances. To give effect to the provision of the Code cited would be to limit the remedy in federal courts to cases where fraud is charged, and to those in which the maker of the conveyance under consideration retained possession of the property. The application which we make of the facts in this case to the Mississippi statute will render it unnecessary to determine whether such an effect would be permissible.

Under the section of the Code quoted, a conveyance, absolute on its face, shall not be proved by parol to be a mortgage, unless.the party making the conveyance retains the possession of the property, or unless fraud in its procurement be the.issue to be tried. While the conveyances under which Mrs. Wilkes claims were made by the bank and Thomas, the president of the bank, and Ham, the trustee, it will *715be assumed that, having been made for the benefit of Schild, delivery by him to Mrs. Wilkes of possession would be a parting contemplated by the statute. The allegations of the bill do not indicate delivery by him to Mrs. Wilkes. It is stated that the property described as the Uipsey place, and a few acres of the property described as the Bent - wood place, and the houses located on lands in the town of Durant, and the property lying in St. Joseph county, Mich., are the only properties that are susceptible of actual occupancy, and that during the period of the confinement of - Schild in the asylum his brother had control of the properties and attended to their renting and the collection of rentals therefrom. It is alleged that, when the titles were vested in Mrs. Wilkes, it was understood and agreed that Joel Schild should continue in charge of the renting, as the representative of William Schild. There is nothing in the bill to indicate that there was at that time any change in the occupancy of the property. The law would have ref eretice to that date, ’ and not to a subsequent date. There arc allegations to the effect that afterwards Joel Schild was induced by Mrs. Wilkes to move on the Uipsey place for the purpose of terminating the general supervision of the properties; hut it was stated that this moving was not intended as a surrender of the right of possession of William Schild. It also states that ever since "the moving of Joel Schild to the Uipsey place he has been in occupancy and control thereof, and has supervised the various tenants thereon. Kven if it could be said that( possession of a part of the property was, at the time of the making of the conveyance, placed in Mrs. Wilkes, the failure to turn over all of it to her would prevent the application of the statute.

[7] The quoted section of the law of Mississippi does not, by its terms, have application to a case where fraud in the procurement of the conveyance is the issue to he tried. Under the proposition now considered, and also in the proposition made under subdivision XI of liis brief, counsel for appellees question the sufficiency of the charges of fraud. It is stated that the charge of fraud in the procurement of the conveyance is “shifty,” and it is said, quoting from a Mississippi case:

•‘Where fraud is relied on as a basis of relief sought from a chancery court, the facts on which the charge is predicated must be specifically stated with full definiteness of detail.”

It is settled that generalizations with reference to fraud will not be sufficient. The bill is not subject to the charge that it lacks in definiteness. The facts, from the proof of which fraud is to he inferred, and from which it is charged, are set forth with as great a degree of particularity as their character will permit. If the elements of fraud are simple, the pleading will not be held insufficient because complexity is not introduced into a statement of them. Not only is the fraudulent design charged, but there is a statement of how it was to be accomplished, and a statement of much of the evidence by which it is to he established. The following facts are specifically set forth: That Schild was an old man, who had had financial and family troubles, and who had just returned from an asylum for the insane; that im*716mediately after his return he was pressed by the Grenada Bank for the payment of a debt due to the bank; that, while he was undertaking to .secure money with which to discharge the debt, Mrs. Wilkes, professing friendship for him, indicated a willingness to take up the debt due to the bank for the security held by the bank, provided she were permitted also to take up'another debt secured by other property, and make all of the property responsible for all of the debts. It is charged that this proposition was made with the fraudulent intention of placing all of the property of Schild so that none of it could be used in discharging any part of his indebtedness, whereby all of the property of Schild might be secured. It is charged that, after securing conveyances to the property, she made excessive demands with reference to the amount of the indebtedness due upon the property, with the fraudulent intent to prevent its redemption. It is also charged that, when Schild undertook to sell the property, she discouraged the sales by promising to carry the debt until it was discharged by the rents and profits. When Schild secured purchasers for the land, she, according to the allegations of the bill, prevented the prospective purchasers from consummating the purchases.

[8] It has been held that a mere effort to prevent a conveyance, absolute in form, from having its true status as a mortgage fixed, is fraudulent. In this bill the fraud is charged throughout, and charged with sufficient definiteness and particularity. The entire, discussion of article 4783 is, perhaps, unnecessary. There is nothing in that article which undertakes to regulate the manner of pleading. A number of the allegations of the bill are, according to the terms of the bill, to be established by instruments in writing; but this recital as to such allegations does not carry the inference that the others are to be proved by parol. The sufficiency of a bill is not to be determined by a consideration of whether the pleader will be able to establish his allegations. ■

[9] The exhibits to the petition indicate that the controlling allegations of the bill could be established by evidence in writing. Assuming that article 4783 has application, it would doubtless have the construction given to the provisions of the statute of frauds, and would not exclude all oral testimony in the trial of a case, when the controlling and essential features are established by written evidence. The letter of Mrs. Wilkes to the president of the bank, of date September 5, 1912, establishes that prior to the conveyance it was contemplated that the property would be taken over to secure payment of the sum there named. The status of the title to the lands in the name of the bank, and of Thomas, president of the bank, is indicated by writing. After the conveyance had been made, a memorandum, signed by Mrs. Wilkes, gives the indebtedness which she is claiming from Schild, and states:

“This includes all indebtedness due to date on property deeded E. E. Wilkes by Grenada Bank and J. E. Ham, trustee, which, we will deed on payment of above.”

The only evidence that it would be necessary to introduce would be to1 show that Joel Schild, mentioned in the letter of Mrs. Wilkes, was *717acting for iiis brother, and that the statement last referred to was delivered to Schild. Even if the article of the Mississippi statute is entirely applicable, the necessary oral testimony would properly be admitted.

[10] IV, VI, VII, VIII, IX, and X. By subdivisions 4, 6, 7, and 8 of the argument, certain other sections of the Mississippi statute of frauds are quoted, and undertaken to be applied to the facts of this case. It will again be sufficient to state that the ruling complained of in this case is‘the dismissal of the bill as upon a demurrer, and that there could be, on that account, no application of the rules of evidence by which the facts alleged were to be established.

If this were not true, however, the quoted sections would not prevent the introduction of parol testimony to establish the character of the conveyance, absolute in form, under which Mrs. Wilkes undertakes to hold. All of the rulings which have permitted courts of equity to accept parol evidence for the purpose of showing the character of the conveyance as a mortgage have been made in jurisdictions where statutory provisions in almost the exact form of the Misissippi statute of frauds have obtained. In substance, these rulings have been based upon the idea that the conveyance, absolute in form, is not upon “any contract for the sale of lands,” or “the making of a lease thereof for a longer term than one year,” or “upon agreement which is, not to be performed in the space of a year” (section 4775), or the making of “an estate of inheritance or freehold for a term of more than one year” (section 2763). Section 4780 of the Mississippi Code, by its express terms, excludes its application to conveyances of the character here in question.

This observation disposes also of subdivisions 9 and 10 of the argument.

XII. Subdivision 12 of the argument is to the effect “the demurrer was properly taken and correctly sustained.” This contention has, we trust, been answered.

Upon the allegations of the petition the plaintiff is entitled to have the conveyance declared a mortgage, to an accounting, and to the other relief asked, except the appointment of a receiver. It is alleged that there are a number of tracts of land which should be rented, and that a part of the property consists of timber lands, which require attention. It may be that the trial judge will find it advisable to appoint a receiver.

The judgment dismissing the bill is reversed.