47 Wis. 160 | Wis. | 1879
It is insisted by the learned counsel for the appellant, that the conveyances and contracts above described, unexplained by any parol evidence, show that the transaction was a loan of the sum of $1,200 by the said Crosby to the said Ann M. C. Smith, to be paid in two years from the date of such loan; and that, instead of receiving interest on the money loaned, he was to have the use of the property, discharged of the rent secured to her by the lease, the surrender of which was accepted by her at the time of making the loan. On the other hand, the learned counsel for the respondents insists that the writings show an absolute sale of the property — which was a right to the use of certain water taken from the Mon-terey dam in the city of Janesville — by the plaintiff to Crosby, accompanied by an agreement on his part that, in case the appellant would pay him the sum of the purchase money punctually in two years from the sale thereof, he would reconvey the same property to her; he, in the meantime, to have the possession and use of the property purchased by him. Independent of any evidence explanatory of the transaction, and relying only upon the legal effect of the written instruments offered in evidence, we are compelled to concur in the view of the case taken by the counsel for the respondents. The deed and contract, which are the material papers in the case, do not show the transaction to be a mortgage. The deed is absolute on its face, and does not indicate anything but a sale on the part of the appellant, and a purchase on the part of
This case, upon the papers alone, is a much stronger case than that of Conway's Ex'rs v. Alexander, 7 Cranch, 218. In that case the supreme court of the United States held, that when land had been conveyed to a third person in trust to reconvey to the grantor if he should repay the purchase money before a day named, and if not, then to convey to the purchaser, in the absence of a bond, or note, or other evidence of indebtedness, the transaction must be regarded as a conditional sale. Chief Justice Maesiiall, who delivered the opinion of the court, said: “ To deny the power of two individuals, capable of acting for themselves, to make a contract for the purchase and sale of lands defeasible by the payment of money at a future day, or, in other words, to make a sale with a reservation to the vendor of a right to repurchase the same land at a fixed price and at a specified time, would be to transfer to the courts of chancery, in a considerable degree, the guardianship of adults as well as infants.. Such contracts are not prohibited either by the letter or the policy of the law. ... In this case the form of the deed is not in itself conclusive either way. The want of a covenant to repay the money is not complete evidence that a conditional sale was intended, but it is a circumstance of no inconsiderable importance. If the vendee must be restrained to his principal and interest, that principal and interest ought to be secure. It is therefore a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy really exists, its not being reserved in terms will not affect the case. But it must exist in order to
It being clear that upon the written evidence the appellant failed to make out any light to redeem the premises upon the ground that the defendants held the possession of them by virtue of a mortgage and not by virtue of a deed, the only remaining question is, whether the parol evidence introduced by the respective parties changed the rights of the parties as they appeared from the writings introduced, and satisfactorily showed that, notwithstanding the absolute nature of the conveyance made, the transaction was in fact a loan of money by the defendant Crosby to the appellant, and these writings were given to secure such loan, and not with the intention of passing the absolute title to the said defendant.
Upon this point, after a full hearing of the case by the learned circuit judge, he has found against the appellant. After a careful examination of the whole evidence, we are satisfied that this finding is sustained by the evidence, and that there certainly is not any such preponderance of the evidence against such finding as would justify this court in reversing the judgment on the ground that such finding is clearly against the weight of evidence. On the contrary, looking simply at the evidence as it appears in the record, without
By the Court. — The judgment of the circuit court is affirmed.