3 Mich. 482 | Mich. | 1855
By the Court,
It is insisted that the bill should be dismissed, because, as it is claimed, there is a material variance between the bond set forth in the bill, and the bond relied on in evidence. The consideration of the bond after specifying a definite sum of
We will now proceed to the examination of the case made, by the complainant. She alleges that. in the year 1837, Eli Swetland, (her deceased husband,) was seized in fee simple of the lands described in the bill, and that during that year,, he conveyed them to William Swetland, by a deed absolute upon its face, but which was intended as a mortgage, to secure the payment of the sum of $747 89, which William claimed Eli owed to him; that at the time the deed was executed, it was agreed between the parties thereto, that Eli should hpve the possession of the land until the expiration of the term of fifteen years; and that he remained in possession thereof, until sometime in the year 1838. That after the execution of the deed, and on the 18th day of August, 1838, in consideration of the said conveyance, and at the re
In giving a history of the transaction between William and Eli, the' complainant does not set forth the circumstances which led to the execution of the deed, further than to state 'that the deed was executed to secure the payment of a certain sum ot money in a given time, which William claimed was due him from Eli We are not informed by the bill, of the nature of the debt; when, or under what circumstances it was contracted; whether it was evidenced by anote or obligation, which was cancelled at the time the deed was given, or remained outstanding; nor as to the value of the land. By the language employed to describe the debt due from Eli to William, the complainant appears to have meant to suggest and >ubt whether Eli, in fact, owed William, and to create the impression that Eli was placed under some kind of necessity, to yield to the claim made by William, and gave him a deed ¡of the land to secure its payment; but she has produced no proof of this, and so far as she has made any case, it depends entirely upon the construction to be put upon the deed and bond.
The condition of the bond recites that William has a deed of a certain tract of land, in the county of Oakland, in the State of Michigan, on which Eli Swetland’s family now resides, and that the consideration of the deed, was money due from Eli to William; the amount of which, according to the settlement first made between the parties, was ascertained to be the just and full sum of $747 89. It then provides that whenever at any time within the term of fifteen years, Eli should pay to William that sum and certain other .sums, to be advanced by William, in the manner therein specified,
The recitals in the condition of the bond do not assert that there was any debt due from Eli to William, after the deed was delivered; nor does it admit that it was agreed between the parties at the time the deed was given, that the amount of money which formed the .consideration of it, was to be ascertained at a subsequent period. It is the fact asserted, that at the time the bond was executed, the amount was ascertained on settlement, that suggests a doubt whether there had not continued to be a subsisting debt due from Eli to William, from the period when the deed was executed, and it imposes upon us the necessity of ascertaining the object of that proceeding.
If the bond had been executed and delivered at the same time with the deed, and these two acts had constituted one transaction, and if there was no other fact appearing in the case, which would illustrate the intentions of the parties, it might be our duty to declare the deed to be a mortgage; for in doubtful cases, Courts of Equity incline to construe a deed with a condition, to be a mortgage. (8 Paige, 251.) And if it appeared that the debt due from Eli to William, was not extinguished by the delivery of the deed to William, or that the deed was made for the purpose of securing the payment of a debt, it would be our duty to declare it to be a mortgage. (4 Kent. Com. 141.) On the other hand, if the debt which formed the consideration of the deed was extinguished at the time, by the express agreement of the parties; or the money advanced was not paid by way of loan, so' as to constitute a debt and a liability to repay it, but by the terms of the agreement the grantor has the privilege of refunding or not at his election, then it must be deemed pur
The bond creates no mutual liability; the obligee is not thereby bound to repay the purchase money, and there is no intrinsic proof of a debt. In Goodman vs. Grierson, (2 B. & B. 274,) Lord Manners held that a fair criterion by which to decide whether a deed be a mortgage or not, was by asking, are the remedies mutual and reciprocal, and has the grantee all the remedies to which the grantor is entitled. The same doctrine is sustained in 2 Ed. Ch. R. 144, and in the same case, 6 Paige, 480; 19 Wend., Glover vs. Payn, and in Holmes vs. Grant, 8 Paige, 250; and see 1 Cruise Dig., by Greenleaf, Tit. 15, Ch. 1, § 15, note 1.
The Vice Chancellor, in Brown vs. Dewey, (1 Sandf. Ch. R.,) reviews the principal cases upon this point, and arrives at the conclusion that where the personal obligation exists, it may be decisive to show that the transaction was intended as a security, but that its absence is not conclusive, nor is it. a fact that is controlling to establish the contrary. But a contrary doctrine was held in the same case, on an appeal to the Supreme Court. (2 Barb. S. C. 34.)
The sum of $600, expressed in the deed as the consideration of it, was a fair price for the land. It was $100 more than was paid for the farm a few 'years before; and it does not appear that the value of the land was increased by any cause up to the period the deed was executed. The testimony of two of the witnesses shows that it was worth $600. Two others say it was worth from seven to eight hundred dollars, at the date of the deed. The Court says in Brown vs. Dewey, (2 Barb. S. C. 34,) “ that gross inadequacy of price is always a strong circumstance to show that the parties intended a mortgage. On the contrary, if the consideration paid is equal to the fair value of the property conveyed, it is an equally strong circumstance in favor of construing the contract as a conditional sale, and not a mortgage.” The Court admits that
In Holmes vs. Grant, (8 Paige, 243,) a debtor conveyed his farm to his creditor for the amount of his debt, which was about the value of the farm, by' an absolute deed, witli covenants of warranty, &c.; the creditor gave up and discharged the securities which he held for his debt, and on the same day gave to the grantor a writing to the effect, that if such grantor could find a purchaser for the farm within one year, he should be entitled to all the surplus which he could obtain for the same beyond the amount of the debt for which it had been conveyed, and the interest thereon. It was held that the writing was not such a defeasance as necessarily constituted a mortgage. In this case, the fact that the writing or defeasance, though executed on the same day, was not executed and delivered at the same time with the deed, was held to have a controlling effect in construing the defeasance to be a conditional sale, and not a mortgage. In Kelly vs. Thompson, (7 Watts, 402,) the instrument that was claimed to be a defeasance contained the clause, “ If James G. Sampson pays me $1000, my expenses and trouble in improving the land Sampson sells me this day, I will re-deed the same back, if the $1000 with interest is paid me, One year from this date.” This deed bore date the 16th of October 1834, the defeasance boro date the 21st of the same month and year. The Court say that “ so far from appearing to be one transaction on the face and dates of the papers, they appear to be distinct and unconnected, and unless we go to the extent of saying that when a person has obtained an absolute deed, he shall not, at any distance of time, be
These cases admit that dates and instruments may be affected, if it is shown that the difference ot dates is occasioned by a scheme or contrivance with a view to give the appearance of an unconnected transaction to that which in fact is but one transaction, and was in reality, a secui’ity for a loan of money or for a previous debt, but in that case the scheme or fraud must be clearly shown. We think that these authorities establish the position, that where the instrument of defeasance or extrinsic evidence does not clearly indicate that the transaction was intended as a mortgage, or that it was of such character as to show that a security only was intended by a deed, a controlling effect should be given to the fact that the defeasance or bond was executed at a period so remote from the deed.
The complainant rests her cause upon the assumption that the facts recited in the condition-of the bond, are inconsistent with the idea that a conditional sale was intended, and that they establish the fact that nothing but a. mortgage could have been intended by the parties, and therefore-no proof was needed on her part to establish the allegations in the bill, and none could be received to disprove it. But after an attentive examination of the condition of the bond, we are convinced that the facts therein stated do not necessarily lead to this conclusion, nor is it strongly influential. All the facts stated may well consist with a conditional sale, by which the complainant was at liberty to. re-purchase the land by a repayment of the amount for which it was sold to the defendant, including interest, and what defendant might subsequently advance to him. But for the statement in the condition of the bond, that the amount of the consideration for the deed, had been ascertained - on settlement, we should have
When it is considered that a fair price was paid by William for the land; that there is no obligation resting upon the obligee in the bond to pay the purchase money; that the bond was executed and delivered long after the deed was delivered, and that the complainant has entirely failed to prove her charges in the bill, that the deed was intended as a mortgage, and that it was so understood by the parties when delivered; and that it was agreed that the obligee should have the possession and rents and profits of the land, and that she .did in fact, continue to occupy the same .for any time; and in addition to this, that it is apparent from the .bill, that the complainant has neither occupied the land nor endeavored to obtain possession of it for twelve 'years last past, we thinTr there is no fact remaining to the complainant from which the law will raise a presumption which she can urge in support of her construction of the bond, and that she should not be permitted to establish the charges in her bill by mere inference,'whilst she deprives the defendant of the opportunity to explain the transaction by his answer under oath responsive to the bill.
Both of the defendants have answered under oath, but the complainant waived the oath of William to his answ’er; it is therefore only a pleading which puts in issue the statements of the complainant so far as they are denied; we have already stated in general terms, that the answer of William denies the allegations in the bill, except as to the execution of the deed and bond, which are admitted. We shall, therefore, state only so much of his answer as -is responsive' to the bill, and supported by proof. He states that Eli Swetland was his brother, and was in indigent cirqumstances; that he went with him to Michigan to purchase a farm for him, in the year
The answer of Charles M. Orr, is put in under oath. He denies the principal matters stated in the bill, upon information and belief.
William B. Tuttle testifies that William Swetland, one of the defendants, applied to him to buy his farm, and stated to him that he was buying it for his brother Eli. He paid witness $300, and Eli turned out his horses and wagon and harness for $200, the balance of the purchase money. He does not know whether William paid his own money.
Said Charles M. Orr, one of the defendants, was sworn, as a witness under an‘order of the Court, under rule.
We think it is established by the answer of William and the proof, that he had endeavored to help his poor relatives, and that he came to this State with Eli to aid him by buying a farm for him, with the intention that he should have a home for himself and family, and not with the intention to permit him to retain or sell the farm as he pleased. But that he was disappointed in his expectation by the return of Eli to Pennsylvania, and his abandonment of the farm. Eli himself appears to have understood that he had forfeited the conditions upon which he was to hold the title to the land, and accordingly deeded it to his brother. It would seem that the land was deeded to William, because he in fact had advanced the $300 and the team which was paid for the farm, and the farm belonged to him, and Eli had forfeited all claim to it. The question did not arise between the parties as to its value, 'though the consideration mentioned in the deed is one hundred dollars more than the original purchase price; this may have included other advances. To our minds, this