79 Va. 321 | Va. | 1884
after stating the case, delivered the opinion of the court:
It is well settled that a conveyance of land, absolute on' its face, may be shown in equity by extrinsic and parol evidence to be, in reality, a mortgage as between the original parties and those deriving title under the grantee, who are not bona fide purchasers for value and without notice. But the presumption, of course, always is that the deed is what on its face it purports to be, and to repel this presumption the evidence must be clear, unequivocal, and convincing. 3 Pom. Eq. 175, §1196; Phelps v. Seely, 22 Gratt. 573; Snavely v. Pickle, et als., 29 Id. 27, and cases cited. In Franklin v. Roberts, 2 Iredell Eq. 560, Ruffin, C. J., said: “When the answer denies the right of redemption the proofs must be clear, consistent, and cogent, composed of circumstances incompatible with the idea of an absolute purchase, and leaving no doubt on the mind.” Such is not the character of the evidence relied on in this case. In the first place, no personal security was taken for the alleged loan,
On the other hand, in addition to the responsive averments of the answer, the testimony for the defendant clearly shows that no such understanding between the parties, as is alleged in the hill, was asserted at the time the deed was executed and acknowledged.
The notary, who went to the plaintiff’s house and took the acknowledgement, testifies that before the deed was acknowledged, it was read to the plaintiff (who was himself unable to read) by one of the persons present at the time, and that he did the same. He further says: “ I think Mr. Edwards (the plaintiff)then requested me to walk out with him, and after we got out, he asked me if the deed would take all his rights from him, and I replied, it would, that it conveyed away all his right and title to the land. I told him, while we were out, that it was certainly a very plain deed, conveying away the land with all
These statements as to what was said and took place in the house, are fully corroborated by the witness, A. H. Mitchell, who was present at the time, and who further says: “The price for the land was understood at the time. The amount of the Farmer debt had been calculated, as specified in the deed, and this amount was understood, between Wall and Edwards, to be Hie price for the land.” And in reply to other questions, the witness said: “I have had several conversations with Edwards about the land since the deed was executed, and he never set up any claim to the land, to my knowledge, until about the time this suit was brought.” Mrs. Ellen R. Crawford, a daughter of the plaintiff, and who also was present when the deed was executed, gives a similar account of what then took place. And when asked to state anything she may have heard her father say about the conveyance of the land, before or soon after the execution of the deed, she replied: “He said if Wall did not take the land and pay off the Farmer debt it would have to go. I have heard my father also say that he would rather Wall
The appellee claims, and so stated to the appellant when the deed was executed, that he wanted the land as a home for his mother and half sister, who were respectively the wife and daughter of the appellant, and who afterwards left the appellant and were maintained by the appellee.
Under these circumstances, therefore, the appellant’s continuing in the possession of the land until a portion of it was sold, and for sometime afterwards of the residue, cannot be regarded as inconsistent with an absolute conveyance thereof to the appellee.
Nor is the fact of the inadequacy of the price for which the land was sold entitled to much weight in support of the appellant’s contention. The sale was substantially for cash, and the price was but little less than the assessed value of the land. But conceding that it was less than its real value, that circumstance cannot avail in view of all the testimony in the cause tending to show that a mortgage was not intended. How far the appellant may have been influenced, if at all, in the transaction by the fact that the appellee desired the land as a home for his mother and sister, which implied a home for the appellant also, so long at least as they should live together, is not shown by the testimony; but it is reasonable to suppose that it was not without its influence. And this may account for his declarations to several of the witnesses that he was entitled to a home on the land and a maintenance for life. If such was in fact the understanding between the parties, while it does not
Decree aeeirmed.