Tbe plaintiff introduced in evidence a deed,, dated 13tb May, 1878, absolute on its fаce, from bimself to-S. Cory, and tbe following paper-writing bearing same date from S. Cory to bimself, whose execution is admitted: “Tbis is to certify that A. T. Porter doеs not owe me only $178.78 and interest on same, and when it was paid tbe right of bis prоperty is to be returned to bis heirs. May 13, 1878. S. Cory.”
Tbe complaint alleges payment in full, asks for an accounting and tbe execution of a deed by defendants, beirs-at-law of Cory, back to plaintiff.
In tbe late case
of Watkins v. Williams,
“(1) It must appear that tbe clause of redemption was omitted through ignorance, mistake, fraud or undue advantage.
“(2) Tbe intention must be established, not by -simрle declaration of
the
parties, but by proof of facts and circumstances
dehors the deed
inconsistent with tbe idea of an absolute purchase; otherwise tbe solemnity of deeds would always be exposed tо Tbe slippery memory of witnesses.'
Kelly v. Bryan,
*44 “The plaintiff makes no attempt to skеlter himself under the first proposition, but he insists, and we think he has shown, that he is protected by the second proposition.”
This covers the present controversy. The first proposition is settled beyond controversy.
Sprague v. Bond,
But the plaintiff does not come within this class. Though he alleged in his complaint that the clause of defeasance was omitted “through ignorance, mistake, fraud and undue advantage,” he offered no evidence in proof of it, and in fact the written agreement of S. Cory set out by him negatived the allegation оf inadvertence or fraudulent omission. The defendant received no detriment by an issue not being submitted on a matter as to which there was no proоf, and his exception to the refusal of such issue can not be sustained.
Thе plaintiff’s case rested on the second proposition, quoted above from
Watkins v. Williams.
The written agreement upon the evidence was a pаrt of the same transaction with the deed of the same date, and taken in connection with the other evidence showing inadequacy of priсe
(Howlett v. Thompson,
*45
It is immaterial thaj; tbe contract was in several instruments.
Watkins v. Williams, supra; Robinson v. Willoughby, supra; Mason v. Hearne,
Tlie two prior mortgages were cоmpetent evidence to show the indebtedness. Robinson v. Willoughby, supra.
The Court is presumed to have charged that the proof must be “clear and cogent and incоmpatible with the idea of a purchase, and should leave no fair doubt that a security was intended”
(Blackwell v. Overby,
In such cases, time is not of the essence of the contract.
Mason v. Hearne,
The exception to the sons of the plaintiff, under The Code, section 590, as witnesses because they fall under the description “heirs” of'grаntor — plaintiff—is without force. The jury have found that the conveyance was in reality a security for debt. The witnesses are not “heirs” as long as their father (the plaintiff) lives, and may never have any interest in the land. They certainly have no disqualifying interest now.
The conveyance to Corey being registerеd as a deed, and not as a mortgage, a purchaser for value frоm the grantee would occupy a very different position from the defеndant, Armetta Worthington, who is the devisee of S. Cory.
Waters v. Crabtree,
It might be surmised that the transaction was intended to defraud the creditors of the plaintiff. In such case the Courts would help neither party, but even then the maxim potior est conditio possidentis would apply. However, there is no proof that the transaction was for a fraudulent purpose.
The judgment below is
Affirmed.