162 Ky. 382 | Ky. Ct. App. | 1915
OPINION OF THE COURT BY
Affirming.
On February 22, 1911, Jordon McBeath, a colored man about seventy years of age, borrowed from the Monticello Banking Company the sum of $39.46, and executed his note therefor with H. C. Kennedy as surety. In order to indemnify Kennedy, Jordon McBeath and wife executed to him a mortgage conveying a two-fifths interest in a tract of land containing about seventy acres. As Jordon McBeath owned only a two-ninths interest in the tract of land, it is claimed that his interest was described as two-fifths by mistake. When the note in question became due. Kennedy executed his personal note to the bank and took up the old note, signed by himself and McBeath. When the new note matured, Kennedy paid it. On June 26, 1912, Kennedy went to the home of Jordon McBeath and procured from him and his wife a deed conveying, their two-ninths interest in the land to Kennedy and quitclaiming any interest as to the re-maindep- ,At the same time Kennedy executed a collateral agreement by which he bound himself,- to convey
Castillo brought this action in ejectment against Henry McBeath, one of Jordon’s children, to recover the land in question, and set out in his petition the above proceedings by which he obtained title. The defendant pleaded mental incapacity on the part of Jordon Mc-Beath, inadequacy of consideration, and that the deed was intended only as a mortgage. He also pleaded a tender within six months of the consideration expressed in the deed. On final hearing, the chancellor adjudged the deed to be a mortgage, and denied plaintiff the relief prayed for. Plaintiff appeals.
A great deal of evidence was heard on the question of tender, but, in view of the conclusion of the court, we deem it unnecessary to consider that question, or any question other than the effect of the conveyance. Jor-don McBeath and his wife lived on the land in controversy, which is located about four miles from the town of Monticello. Jordon was not in good health, and Judge Kennedy, fearing that his interest in the land would not be sufficient to cover the debt on which he was surety, together with the costs of the action, rode out to Jordon’s home for the purpose of getting him to execute the deed. The deed and collateral agreement had been prepared. Judge Kennedy says that Jordon’s mind was in no way affected, and he was in full possession of his mental powers. The deed and collateral agreement were read to Jordon and his wife. Jordon
Kittie McBeath, Jordon’s widow, says that when! Judge Kennedy came he said the instrument was a mortgage. At that time Jordon was in bad health, and his mind was “waivery.” Did not know whether he had a mind sufficient to realize and understand the nature and effect of the papers he was signing or not. Did not know that she had deeded the place away. Judge Kennedy said he did not want the place, and would give them a chance to pay for it. When Mr. Castillo bought the place she moved off. It was just a few days after the six months expired. She gave up the place because she thought it was his. The defendant, Henry McBeath, testified that at the time the deed was executed Jordon’s condition was not good. Jordon could read print and write a little. Judge Kennedy said he would give them six months to pay in. He did not want the home; all he wanted was his money. It was the understanding of all present that the mortgage was to be prolonged for six months. Jay McBeath, another son of Jordon, testified that he was present when the deed was executed. Judge Kennedy said it was a mortgage. He further said it
Though a contrary view was announced in Munford v. Green’s Admr., 103 Ky., 140, 44 S. W., 419, that case has been overruled and it is now the settled rule in this state that without an allegation of fraud or mistake parol testimony is admissible to show that a deed absolute on its face was executed to secure a debt, and is, therefore, a mortgage. Hobbs v. Rowland, 136 Ky., 197, 123 S. W., 1185; McKibben v. Diltz, 138 Ky., 684.
The appellant relies on the case of Tygret v. Potter & Co., 97 Ky., 54. There Tygret, being indebted to Potter & Co., in the some of $4,242, executed to them a mortgage covering about 150 acres of land, to secure the debt, which was represented by a note payable twelve months from date. When the note became due, Tygert was unable to pay it. Thereupon he executed to Potter & Co. a deed conveying the land covered by the mortgage, and at the same time he received from them a collateral agreement by which they undertook to re-convey the land to him on the payment of the sum of $4j678.60, the consideration expressed in the deed, together with interest thereon up to the time of payment. It was held that inasmuch as Potter & Co. already had a mortgage on the- entire premises conveyed at the time the deed was executed, there could have been no motive prompting the parties to so change the terms of a writing that upon its face was plainly a mortgage unless they both intended the conveyance to pass the fee in the event the debt was not paid within twelve months. For this reason the conveyance was adjudged a conditional sale, instead of a mortgage. Other circumstances that induced this conclusion on the part of the court are stated as follows:
“The evidence of the debt had been surrendered and there is no evidence conducing to show the land to be of greater value than that paid for it, or that the agreement was unconscionable or oppressive, but, on the contrary, it is manifest the appellant saw or believed he could not discharge or release the mortgage, and therefore made the best possible terms with his creditors.”
The difference between that case and this is as follows: Kennedy was surety for Jordon McBeath on a
Judgment affirmed.