19 Iowa 335 | Iowa | 1865
We do not find, from the testimony, that Claussen had any fraudulent purpose in giving the trust deed in the place of the mortgage, pending the negotiation for the sale of the property to plaintiffs. The deed which they accepted expressly refers to the incumbrance as a “ deed of trust,” and they thus had the fnost reliable evidence and notice of its nature and import. Not only
The charge of fraud in procuring the conveyance of August 12, 1858, is not sustained by the evidence, and indeed it does not seem to be urged with much apparent confidence by counsel. The important inquiry is to ascertain the true and actual nature of the transaction. Plaintiffs claim that the intention (of defendants, at least, in which they were compelled to acquiesce) was to create a security which should, become irredeemable by mere lapse of time, and which equity will not permit. Or if not this, then they claim that the deed was but a conveyance of the equity of redemption by themselves as mortgagors to defendant as mortgagee; that while equity does not pronounce such a conveyance necessarily void, it looks upon it with great suspicion, and if found to have been obtained without valuable consideration, or by taking advantage of the necessities of the mortgagor’s situation, should be set aside. Defendant, on the other hand, claims that there was a conditional sale to him, with the privilege in plaintiffs to repurchase. And plaintiff's concede (admitting the validity or fairness of the transaction) that as they did not exercise the right to repurchase'within the time limited, they have no claim for relief. But if their view of the transaction is sustained, then they insist that nothing but foreclosure or release by plaintiffs could deprive them of their equitable right to redeem, and that as defendant put the property beyond their reach, by the sale to Carpenter, he must account to them for its value.
Having said this much as to some of the rules governing these cases, let us turn very briefly to the facts as shown by this record.
And, first, we understand, as before stated, that the conveyance from plaintiffs was fairly obtained. The price paid was not so inadequate as to justify the conclusion that the parties intended a mortgage, or that the conveyance was made for further security. Indeed, taking the testimony all together, it may well be doubted whether, at the time, the property was worth in cash anything more than the defendant’s debt. It is true witnesses differ, as they are very apt to in such cases; but the fact that plaintiffs did not make a sale for more, after the advertisement of the property and before the conveyance, and the further fact that they were unable to raise the money by a sale, or
Then, again, we understand that the debt was extinguished, and that plaintiffs were at liberty to pay, or not to pay, at the time named. At the time of the conveyance, plaintiff’s right of redemption had but little if any value. The sale by the trustee was to take place on the next day. If made, the right to redeem was entirely extinguished; and the act of defendant in giving plaintiff a right to a reconveyance at a time limited, was a favor and benefit extended, rather than a change in the form of a security. By the sale by the trustee, defendant could have secured an unquestionable title to the land, as against plaintiffs, or his money, and there was no apparent necessity on his part, for his own protection, to make the new arrangement.
In addition to this, the written instruments themselves gives the transaction this character. And though it is competent for plaintiffs to show, by parol, that a mortgage was intended, the proof should be satisfactory, and much more so than is here presented. When, as we have seen, upon the whole facts it is doubtful what the parties intended, equity is inclined to treat their transaction as a mortgage. But if the writing or agreement is not doubtful, and the party seeks to show aliunde, that there was a parol defeasance, the burden of proof is upon him, and he must satisfy the court by sufficient proof of the equity of his claim.
And finally, plaintiffs’ conduct subsequently is in conflict with their present claim. \ They surrendered the property at the time fixed for the repurchase, or the refunding of the money. One of them took a new lease, and in March, 1859, made a final surrender. Defendant
Thus we view the facts. Their statement in detail is unnecessary. There are some circumstances, we readily admit, favoring, no little, plaintiffs’ theory of the transaction. Giving them their full weight, however, we conclude that the parties intended a conditional sale, and that the bill was therefore properly dismissed.
Affirmed.