Schade v. Bessinger, 3 Neb. 140

Schade v. Bessinger

3 Neb. 140 | Neb. | 1873

Gantt, J.

This is an action in ejectment, and the plaintiffs in error, who were defendants in the district court, rested, their defense, mainly, on these two grounds : First, that the deed from T. Hoos to the defendant, although a conveyance absolute, yet it was intended to be and was a mortgage security only; and, Second, That Schade, Sr., was the purchaser and owner of the land, the first deed being made to him as grantee, and therefore the second conveyance by Hoos to defendant in error, did not divest him of the legal estate in the premises.

But upon an examination of the evidence stated in the bill of exceptions, I think it fails to sustain either the first or second defense; and this is the unanimous opinion of this court. The testimony of N. W. Burchardt, C. F. Walther, and T. Hoos, who are wholly disinterested witnesses, clearly shows that Schade, Sr., originally purchased the land in controversy for the defendant in error, as a consideration for money she furnished and labor and services she performed for him. C. F. Walther further *145testified that he wrote the deed in which the name of Frederick Schade was inserted as grantee, and, that a short time afterwards, he came to him and told him the deed was to be made to //the defendant in error, and that then, by consent of the parties, the name of Frederick Schade was erased from the deed, and the name of Maria M. was put in the place of it as grantee. N. W: Burchardt further testifies that Schade told him he “ wanted to give her the land to be her own in fee simple without condition,” and that he requested him to write a deed from T. Hoos to Maria M., which was written at his request, and was executed by Hoos and delivered to her; and that the. first deed, not being recorded, was by the consent and understanding of all parties, cancelled and thrown aside. It seems quite certain that Schade, Sr., when he contracted for the purchase of the land, and afterwards, intended that it should be conveyed to the defendant in error in fee simple without condition whatever, and this intention is manifested both by his acts and declarations.

But it is urged that upon the cancellation of the first deed, the second one was executed to the defendant in error as a mortgage security only. It is true, under the rule of law, now well established, that a formal conveyance may be shown to be a mortgage by extrinsic evidence. And this rule seems to be founded on the principle, that, in such case, the proof raises an equity which does not contradict the writing or affect its validity, but simply varies its import so far as to show the true intention and object of the parties without a written defeasance, and establish the trust purpose for which the deed was executed. But to thus vary the legal import of such deed absolute, and especially when fraud, accident, mistake or surprise, is not alleged, the evidence in reference to the understanding and intention of the parties, at the time of the execution of the writing, must be clear, *146certain and conclusive, before a court of chancery will determine such writing to be a mortgage security only. Stevens v. Cooper, 1 John Ch., 429. In the case under consideration, the proof falls far short of showing that the writing was intended as a mortgage, but on the contrary the evidence manifestly shows, that the intention and purpose of Sehade was to vest in the defendant in error an absolute legal estate and interest in and to the premises.

Again, it was urged by counsel that the cancellation of the first deed to Sehade as grantee, and the execution and delivery of the second one by Hoos to the defendant in error, did not, in law, divest him of the legal estate in the premises. I think this is not the law of this case. We find as exceptions to the general rule of law on this subject, that an unrecorded deed of land voluntarily given up, and cancelled by the parties with intent to re-invest the estate in the grantor, will, as between the parties and all subsequent claimants under them, operate as a re-conveyance, and revest the estate in the grantor. Tomson v. Ward, 1 N. H., 9. And in Commonwealth v. Dudley, 10 Mass., 403, it is said that “ where A, being seized and possessed of land purchased by him of B, by a deed duly executed but not recorded, contracted to sell the land to 0, and for that purpose cancelled B’s deed, who at A’s request made a new conveyance to C., it was liolden that C’s title was valid notwithstanding A. continued in the occupancy of the land jointly with C. after the last conveyance.”

Such conveyance operates an an estoppel arising from the voluntary surrender of the legal evidence by which alone the estate could be supported; and a conveyance to a third person, makes a good title to the latter by operation of law. Trull v. Skinner, 17 Pick., 215. Nason v. Grant, 21 Maine, 160; and the grantee, by his voluntary act, having put it out of his power to produce the *147deed, in law will not be permitted to introduce secondary evidence in violation of his understanding, and thereby defeat the fair intention of the parties. Mussey v. Holt, 4 Foster, 252.

' Frederick Schade, having voluntarily surrendered the legal evidence by which his claim could be supported, and having directed a deed to be made to the defendant in error for the premises, is estopped from introducing secondary evidence in violation of his undertaking; it would be fraudulent in him to attempt to defeat a title made with his knowledge and concurrence, and for which, as it appears, he received a satisfactory consideration. The other justices concurring, the judgment must be affirmed.

JUDGMENT AFFIRMED.