60 W. Va. 272 | W. Va. | 1906
E. J. Somerville complains of a final decree entered by the circuit court of Mason county, in a chancery cause in which he is defendant and Charles L. Fridley is plaintiff. By the decree complained of, a deed absolute on its face, made by Fridley to Somerville, purporting to convejf 66 1-4 .acres of land in said county, was declared to be a mortgage securing to Somerville the sum of $150.00 with interest from the 13th day of December, 1904, and the further, sum of $13.12, the amount of taxes paid on the land by Somerville.
The sole object of the suit on the part of Fridley was to have the deed declared to be a mortgage instead of an absolute conveyance. The question for determination is, whether or not, upon the whole evidence, the action of the court in declaring the deed in controversy to be a mortgage was erroneous. The deed, absolute on its face, was executed, acknowledged, delivered and recorded on the 13th of December, 1904. It acknowledged the receipt of $225.00, the consideration named therein. The plaintiff by his bill in substance alleges that, at the time he executed and delivered the deed, and for some time thereafter, he supposed that it was a deed of trust securing a loan of $150.00; that the deed was not read to or by him before signing and delivery; that, from the declarations and representations of the defend
The value of the tract of land in fee and unencumbered, at the time the deed was made, Is variously estimated by the witnesses. We think from the evidence that $10.00 per acre may be said to have then been the fair value'of the land. The plaintiff’s wife, whose age does not appear from the record, did not join in the deed. At the time the deed was executed, and as a part of the transaction, the defendant executed and delivered to the plaintiff a writing as follows:
“Whereas, The undersigned E. J. Somerville has this the 18th day of December, 1904, purchased froniC. L. Fridley a tract of land in Cooper District, Mason county, West Virginia, containing 66 acres, and,
“Whereas, The saidE. J. Somerville is willing that in the event Lillie Gardner shoul pay to said E. J. Somerville the sum of $225.00 within four months from this date, that then he, the said E. J. Somerville, will deed said tract of 66 acres to said Lillie Gardner.
“Now, therefore, this agreement witnesseth: That said E. J. Somefville does hereby agree that if the said Lillie Gardner within four months from this date, pays to said E. J. Somerville, the sum ,of $225.00, that then the said E. J. Somerville will make said deed to her, the said Lillie Gardner, with covenants of special warranty. But if the said sum of $225.00 is not paid within said four months then the right of said Lillie Gardner .to buy said land shall cease and determine, and this contract is to be null and void.
“Witness the following signature and seal.
E. J. Somerville, (Seal.)”
“In consideration of E. J. Somerville assisting me in the purchase of a lot from H. L. Eobey in North Point Pleasant, I hereby release all the right, title and interest I have in and to the 66 acre tract of land he purchased from Charles L. Fridley in Cooper District, an option to re-purchase the same being given bjr said E. J. Somerville in a written contract signed by said E. J. Somerville; and in consideration of One Dollar, cash in hand paid, the receipt of which is hereby acknowledged, I hereby deliver up possession of said contract, together with any and all rights I have in and to the same, or to the land by virtue of said contract.
“Witness my hand and seal this 25th day of January, 1905.
“Lillie B. GaedNer (Seal).”
After considering all the evidence, facts and circumstances shown by this record, we are clearly of the opinion that the deed in question, and the option to Lillie Gardner, state trufy the transaction between the plaintiff and the defendant, except as to the money consideration for the deed. The money consideration, according to the evidence, was $150.00 paid to plaintiff, and $18.12 to be paid on taxes then accrued against the land, and $10.00 attorney’s fees to be paid to Duffy, plaintiff’s attorney in this transaction. It seems to us that the evidence overwhelmingly sustains the theory that the intent was to make an absolute conveyance of the land, subject alone to the right of Lillie Gardner to purchase at the price of $225.00 within four months under the option. The. evidence is voluminous. To detail it m extenso would require much space and would answer no useful purpose. Parol evidence, to prove a conveyance absolute on its face to be a mortgage, must be clear and unquestionable. Way v.
It is contended that the vn&icia of a mortgage are present in the circumstances attending this transaction between plaintiff and defendant, and should control. in reaching the conclusion that the deed is a mortgage. This Court has at different times recognized certain circumstances as mdicia of a mortgage, or, in other words, as having great weight in leading to the conclusion that a deed absolute on its face is a mortgage. These vndicia are collated by Mr. Hogg in his work on Eq. Prin. p. 715. They are; First: The admission of the parties that the grantor, after the execution of the deed, owes the consideration thereof to the grantee as a debt. Second: The gross inadequacy of the consideration. Third: The retention of the possession of the land by the grantor for many years after making the deed, without the payment
First, the admission of the parties that the grantor, after the execution of the deed, owes the consideration thereof to the grantee as a debt. In this case, there is no evidence showing that the grantee admitted, after the execution of the deed and the completion of the transaction, that the grantor still owed to the grantee the consideration for the deed, or any part of it. It is said in the opinion of this Court in the case of Sadler v. Taylor, 49 W. Va. 104, delivered by Judge Poffenbarger, upon an exhaustive review of the authorities, that where proof offered to show that a deed absolute on its face is a mortgage consists of parol declarations, it must be clear and strong. “So strict is this requirement indeed that I have been unable to find any case in which the proof did not go to the extent at least of an admission on the part of the grantee that the money represented in the transaction was a loan, coupled in each case with one or more of the circumstances' which have been judicially determined to be mdicia of the real contract having been a loan, or fraudulent conduct on the part of the grantee.”
Second, the gross inadequacy of the consideration. It is claimed that the consideration was grossly inadequate. This is earnestly relied on, not only as a circumstance tending to show a mortgage, but as an independent ground for setting aside the deed. As we have said, the fair value of the land in fee, unencumbered, as shown by the evidence, was $10 per acre, or $662.50 for the whole tract. The consideration named in the deed was $225.00; but the fact is that the defendant paid $150.00 to plaintiff, $13.12 taxes, and was to pay $10.00 to plaintiff’s attorney. It is explained by the evidence that the consideration was named in the deed at $225.00 to correspond with the price at which Lillie Gardner was given the option to purchase. Under this deed, if ab
Third, the retention of the possession of the land by the grantor for many years after the making of the deed, without payment of any rent. This circumstance is notably absent in this case. It appears that the plaintiff, at the time the deed was made, had fully determined to change his place and manner of living. He owed about $150.00, which he desired to pay. He had made previous efforts to borrow this sum, but had failed, because his wife would not join in a deed of trust. There is evidence tending to show that he expected
Fourth, that there had been negotiations pending between the parties for a loan. This circumstance is present in this case. The plaintiff, accompanied by his attorney, applied to the defendant for a loan of $150.00, but was refused, because defendant was then told that plaintiff’s wife would not join in a deed of trust securing the loan. Afterwards, the transaction resulting in the deed and option was concluded between them.
Fifth, that the grantor was hard pressed for money, and that the grantee was a known money-lender. It appears that plaintiff was in somewhat straitened circumstances; that he owed about $150.00, and desired to pay it. It does not appear that the defendant was a known money-lender.
Sixth, that the parties did not apparently consider or contemplate the quantity or value of the land when the deed was made. We are unable to determine from the evidence that the parties did not contemplate the quantity or value of the land. It is shown that the defendant was not acquainted with the land, and had never met the plaintiff until the day the deed was made. The quantity of the land is named in the deed and in the option; and the defendant testifies that he relied upon the representations of plaintiff as to the land and its value. This being true, we do not think that
This concludes the consideration of the indicia of a mortgage in the light of the evidence in this case. Some of the indicia most material are absent. In the opinion in the case of Sadler v. Taylor, it it said, in relation to the indicia of a mortgage, that ‘ ‘it is found in some cases that a. single dominant fact, indicating a contrai’y intention, has been held to preponderate over practically all of them combined, as in the case of Mathews v. Sanford, 26 W. Va. 386.” It is further said: “ There is one circumstance, which, if found to exist in transactions of this kind, determines the question absolutely, namely, if after the deed is executed no debt remains due from grantor to the grantee, the instrument is not a mortgage.” It seems perfectly natural that this circumstance should be conclusive against the theory of a mortgage. It involves the very substance of the issue, and, if found against the grantor, must of necessity conclude his case. The indicia of a mortgage, if present, are circumstances tending to show a fact. The probative force of these indicia is necessarily greater when they co-exist, than when one or more of them are absent. These indicia do not preclude the introduction and consideration of other evidence and circumstances; and such other evidence, both direct and circumstantial, may be of such character, and so potent and convincing, (as in this case,) as to overthrow the weight to be given to any or all of the indicia of a mortgage. It is for the court to determine, from' all the competent evidence in the case, both direct and circumstantial, including any indicia of a mortgage present, whether the deed in question was intended by the parties, at the time it was made, to be a mortgage or an absolute conveyance.
It is contended that the plaintiff was of weak intellect at the time the deed wás made. It does not appear from the evidence, including his own, that he was incompetent to make the deed. It appears that he was a man of ordinary mind, not of the highest nor of the lowest order of intellect.
There are no new ’ questions of law involved in this ease. In cases of this character, the law is fully settled in this State. The burden of proving that a deed absolute on its
For the reasons stated, the decree complained of is reversed, and the plaintiff’s bill dismissed, with costs to the appellant.
Reversed.