192 Ky. 763 | Ky. Ct. App. | 1921
Opinion op the Court by
— Affirming.
William Lewis and J. M. Bieknell were law partners at Hyden. By deed dated February 29, 1896, Hardin Williams and wife, Martha, conveyed a tract of land located in Leslie county, and containing about 100 acres, to William Lewis and J. M. Bieknell. The consideration recited in the deed was ‘ ‘ Two hundred to us in hand paid, and also legal services to us rendered, the receipt whereof is hereby acknowledged.” On January 9, 1901, Hardin Williams and wife entered into a written contract with James M. Baker and William Lewis, whereby they rented the land and agreed to pay an annual rental of $25.00 a year so long as they occupied the premises. On February 22,1904, J. M. Baker and wife, William Lewis and wife and Wilson Baker and wife conveyed the same land to C. Lewis in consideration -of the sum of $225.00 cash. On February 2, 1913, J. M. Bieknell conveyed his interest in the land to O. Lewis.
In the year 1913, 0. Lewis brought suit against Hardin Williams and wife to recover the land. Tn addition to denying plaintiff’s title, defendants pleaded title in themselves by adverse possession and asked that their title be quieted. When the deed which they executed in 1896 was introduced in evidence, they pleaded in substance that the deed was intended as a mortgage for the purpose of securing Lewis and Bieknell in the payment of a fee if they succeeded in having Hardin Williams’ pension reinstated at $50.00, with the further agreement that if they failed to do so, the mortgage was to be null and void, and that they were induced to sign the deed upon the fraudulent representation that it was a mortgage. iBy an amended answer and counterclaim they pleaded that C. Lewis had notice of the fraudulent representation. On final hearing the chancellor adjudged the deed to be a mortgage, and gave judgment in favor of the plaintiff for the sum of $200.00 with interest from February 29,1896, and ordered the land sold for the purpose of satisfying the mortgage lien. Plaintiff appeals.
Hardin Williams was blind when the deed was executed and neither he nor his wife could read or write.
It is our rule not to disturb the finding of the chancellor on questions of fact where the evidence’ is conflicting and, upon a consideration of the whole case, the mind is left in doubt, and we cannot say with reasonable certainty that he erred in his conclusions, Weddington v. Weddington, 169 Ky. 339, 183 S. W. 897, and this rule is peculiarly applicable to the facts.of this case.
But appellant insists that he is a purchaser for value without notice, and is therefore entitled to protection. The rule is'that a deed, absolute on its face, but in fact a mortgage, will be adjudged a mortgage as between the original parties and as against a subsequent purchaser with notice, but not against a purchaser for value without notice. Brown v. Gaffney, 28 Ill. 149; Fultz v. Peterson, 78 Miss. 128; Bean v. Venable, 27 Ky. L. R. 987, 87 S. W. 262; Whittick v. Kane, 1 Paige 202. But it cannot be said that appellant purchased without notice. It is admitted that, after the execution of the instrument in question, the grantors never surrendered possession, but continued to occupy the land. It also appears that they paid the taxes on the land. Though there is high authority to the contrary it is the settled law of this and other states that when the grantor in a deed, absolute on its face, but in fact a mortgage, continues in possession and occupation of the land and pays the taxes on it, these facts are sufficient to put a subsequent purchaser on inquiry and to charge him with notice of the mortgagor’s rights. Jennings v. Salmon, 30 Ky. L. R. 168, 98 S. W. 1026; Daubenspeck v. Platt, 22 Cal. 331; Wright v. Bates, 13 Vermont 341; New v. Wheaton, 24 Minn. 406; Bartling v. Brasuhn, 102 Ill. 441; Brooke v. Bordner, 125 Penn. 470, 17 Atl. 467.
Judgment affirmed.