22 W. Va. 1 | W. Va. | 1883
It is assigned as error by the appellant that the court erred in directing an issue in the cause. The appellee claims that the bill is framed for relief under the tenth section of chapter, one hundred and forty-one of Code of Virginia while the appellant contends that it is a bill for discovery under the seventh section of said chapter.. If the appellee is correct, that his bill entitles him to the benefit of the said tenth section, then, of course, there was no error in directing the issue, because, under that section the plaintiff is entitled as a matter of right to an issue — Brockenbrough v. Spindle, 17 Gratt. 21; Davis v. Demming, 12 W. Va. 246. If, however, the bill is one for relief under said seventh section the plaintiff
It is evident that the pleader in the cause before us did not have a very distinct conception of the laiv or the form in which he might be entitled to redress, but that the relief sought by the bill is for an unpaid debt is manifest notwithstanding the vague and inconsistent averments. .It avers that the defendant, Hoffman, still claims as due him one thousand and twenty-five dollars on the trust debt, and prays for an injunction to restrain the collection thereof. 'And moreover, if we look to the result of the proceedings had in the cause, we find that after expunging all the usurious interest there is still unpaid on the principal and legal interest of the said debt one hundred and six dollars and thirty-five cents. I am, therefore, of opinion that the bill must be treated as having been filed for relief under the said seventh
Itbeing, therefore, apparent thattheplaintiff is not entitled to the' relief provided in the said tenth section, he is not entitled to an issue as a matter of right. According to the general rules of equity practice in such cases did the court err in directing an issue in this case ?
Issues are not directed to enable a party to get additional evidence, but where there is a serious conflict in the evidence leaving the fact in doubt and rendering it necessary to weigh the character and credibility of the witnesses; or where there is such a conflict of evidence, that it is so nearly balanced, as to make it doubtful on which side is the preponderance, an issue ought to be directed ; but where, though there be a conflict, which is not of such a character, no issue ought to be directed. Jarrett v. Jarrett, 11 W. Va. 584.
“No issue should be ordered until the plaintiff has thrown the burden of proof on the defendant.” Beverly v. Walden, 20 Gratt. 147.
The law is well settled in Virginia and this State that if the circuit court improperly directs an issue, it may on the final hearing disregard the finding of the jury and enter such decree as to it seems right, and the question whether or not the issue was properly directed depends upon the state of the proofs at the time the order is made. If the court errs in this respect, such error may be reviewed and corrected by the Appellate Court. Wise v. Lamb, 9 Gratt. 294; Anderson v. Cranmer, 11 W. Va. 562.
“In a chancery cause, if upon the state of the proofs at the time the issue is directed, the bijl should be dismissed, it is error to direct it; and although the issue is found in favor of the plaintiff, the bill should, notwithstanding,be dismissed at the hearing.” Smith v. Betty, 11 Gratt. 752; Jarrett v. Jarrett, 11 W. Va. 584.
Our next enquiry is, whether or not the proofs, at the timé the issue urns ordered, justified the court in making said order. At that time there were in the cause on behalf of the plaintiff but three depositions — that of plaintiff himself, of Protzman and of Weaver,
Protzmcm, testified that he had had a number of conversations with'Hoffman about the terms, purpose and character of the transaction between plaintiff and Hoffman, and he gives almost identically the same version of it that is given by the plaintiff. The whole of his information, he states, was derived from conversations had with Hoffman when no one else was present, and ho says he cannot give either the times when, or the places where, any of the conversations took place, except that he thinks one'took place shortly after Hoffman conveyed the land back to plaintiff, ¿mother about the time Grubb was after plaintiff for money in the year 1868, and another in 1869.
Weaver, testified that he had had conversations with Hoffman in the spring and summer of 1868, about Hoffman loaning money to plaintiff — does not recollect how many conversations — that on one occasion' — date not recollected — he, Hoffman and plaintiff' mot on the land, and plaintiff and Hoffman had a conversation to themselves and then called him as a witness and he says: The contract was that Hoffman was to loan plaintiff about one thousand one hundred dollars, on which he was to get six per cent, interest' — plaintiff' was to make Hoffman a deed for all the farm, and Hoffman was to deed it all back to plaintiff except eight or nine acres which Hoffman was to get as a premium for the use of that money. Witness could not give date of this conversation, and on cross-examination exhibited much ignorance of matters that ought to have been known to him if his recollection was reliable and the facts testified to by him had actually occurred.in the manner stated by him — he stated that he had been in the employ of both the plaintiff and Hoffman, but was not then in the employ of either.
On the other side the appellant states in his deposition, that plaintiff applied to him for the loan of money, but he
The foregoing is the substance of the parol evidence in the cause at the time the issue was directed, and if that had been all the evidence at that time this Court could not, perhaps, hold that the court erred in ordering the issue. But it seems to me that the parol testimony of the plaintiff is utterly irreconcilable with the documentary proofs in the cause. By the deed of June 10, 1868, the plaintiff and wife
None of these conveyances contain any recognition of any agreement for a reconveyance of all or any part of the land to the plaintiff, and there is no pretense and not a scintilla of evidence that there was any separate or collateral instrument giving the plaintiff the right to purchase, or have a recon-veyance of the land or any part of it. The whole claim of the plaintiff rests upon the mere verbal statement of the appellant gathered by witnesses from casual conversations.
It is almost incredible that the plaintiff, in a matter of so much importance, should take the hazard of establishing his agreement by such testimony. Upon the faith of a mere verbal promise of the plaintiff, according to his pretension, he made an absolute conveyance of his whole estate, and then allowed the matter to rest, without complaint, for years and until he is about to be sold out; and even then he uses every effort to raise money to pay for land which by said agreement belonged to him, and only after every other resource has failed, does ho attempt to. set up his said agreement. In the case of Davis v. Demming, 12 W. Va. 246, and other cases where agreements for reconveyance have been enforced, there were collateral contracts in writing. The fact that there is no such written contract in this case is strong presumptive evidence that none such was made. It is no answer to say that the appellant would not give such a writing. The plaintiff does not claim that he ever even applied for one. And if the plaintiff’s witnesses are to be credited, it is certain that the appellant had no desire to conceal the transaction or keep it secret; because he seemed to be proclaiming it on all occasions and in the presence of persons who were sure to make it known, and in a manner which showed, if not recklessness, at least, the absence of any caution or thought of concealment.
The plaintiff not only rested upon this verbal promise at the time, but after he knew the appellant repudiated any such agreement, he purchased and paid fora part of the very land which by said alleged agreement was his own property, and then, without a word of complaint to any one so far'as the -proof shows, he rested quietly for four years. And not only this, but after such notice, without even a protest, he continued to make large payments on the claims due appel
Further, considering that the relief sought in this suit arises out of the statutes of usury as they existed prior to the Code of this State of 1868, which are highly penal in their character, and that the defence of usury has always been regarded as an uneonscientious defence, and while it is given full effect when satisfactorily established, it has never received the favor of either courts of law or equity, it does not seem to me that the plaintiff made a case which entitled him to an issue. Usury, being the sole ground of the relief sought, the plaintiff to entitle himself to invoke the aid of this Court, must establish the alleged usury by clear and satisfactory proof. Brockenbrough v. Spindle, 17 Gratt. 21.
Upon the whole evidence, therefore, which I have necessarily stated briefly ánd, perhaps, imperfectly, but all of which I have carefully examined and considered, I do not think the circuit court should, under the principles of law before stated, have directed an issue in this cause, but that it should have dismissed the plaintiff’s bill. But two of the judges of this Court having come to directly opposite conclusions on the effect of the evidence, it would be uncharitable if not presumptuous for this Court or any member of it to conclude that the circuit court erred in directing the issue. Such a conclusion would be equivalent to holding that said court ought to have no reasonable doubt of the effect of evidence about which the members of this Court differ diametrically. Therefore, in view of the conflict and difference in the conclusions of the individual judges of this Court, I have no doubt that the circuit court properly ordered the issue in this cause.
• The jury having found the transactions referred to them usurious it follows necessarily that they found the said deed of June 10, 1868, to be a mortgage and not an absolute conveyance. And it appearing that the plaintiff has paid an
The only difference between brother Green and myself is as to the effect of the evidence. He thinks it fully piroves that the deed of June 10, 1868, was a mortgage from which it results that the transaction was usurious. I, on the other hand, think it fails to establish that said deed was not in fact as it is in form an absolute conveyance. I think the transaction was a sale and not a loan and therefore Avas not usurious. This difference is a forcible illustration of the wisdom of the rule that in cases of this character the order of the inferior court directing an issue should be treated with much indulgence and should not be set aside by the Appellate Court arbitrarily, but only in cases of abuse and when there ought to be.no reasonable doubt as to the effect of the evidence in the mind of a competent and careful judge.
I concur in the conclusions and law as announced by brother Green in his opinion, and that the decree of the circuit court should be reversed and an order entered to that effect according to the directions contained in said opinion.
The real question in controversy in this case is : "Was the transaction between the defendant Hoffman and the plaintiff Yangilder, which resulted in the conveyance by Yangilder and wife to Hoffman made June 10, 1868, a usurious loan of money by Hoffman to Yangilder? The statutes of usury in this State, since the Code of 1868 took effect, are not penal, but when these transactions took place, the Code of Yirginia of 1850 was in operation in this State, and under its provisions this suit is brought and seeks to impose a penalty or forfeiture on the defendant because of his alleged usury in this transaction.
There can be no question, that in such a case the usury should not be regarded as established, unless it is sustained by evidence clear and satisfactory. And in Brockenbroug’s Ex’r v. Spindle’s Adm’r, 17 Gratt. 21, Judge Moncure uses language, which might indicate that he thought the rule to be
In Porter v. Mount, 41 Barb. 561, the judge refused to instruct the jury: “That the evidence must satisfy the jury beyond any reasonable doubt, that there was usury in the transaction.” Judge Smith on page 427 says: “The judge was asked to instruct the jury to apply to the evidence the liberal and benign rale, which juries are ordinarily instructed to apply in favor of the defendants tó the evidence on criminal trials. A verdict finding usury should doubtless be based on clear and satisfactory. evidence, as it involves by way of penalty the loss of the whole debt, but I do not think the charitable rule of giving to defendants, in favor of life or liberty, the benefit of every reasonable doubt, should be extended to civil actions in such cases.” And the court approved of this refusal of the court below to give the in-sü uctions asked.
The true rule I take it is, that where by statute a penalty is imposed on the usurer, usury can be established only by clear and satisfactory proof; and that a simple preponderance of the evidence would not suffice to establish usury. The rule, which governs in criminal cases, that the evidence must prove the usury “ beyond a reasonable or rational doubt,” is not applicable and has not been and should not be adopted by the courts.
But while the courts in suits against parties to enforce
“Parol evidence is admissible in equity to show, that a deed absolute upon its face was intended as a mortgage; and the restriction of parol evidence to cases of accident or mistake in the creation of the instrument, is unsound in principle and unsupported by authority.”
On page 125 he further says: “As the equity upon which the court acts arises from the real character of the transaction, it is of no consequence in what manner this character is established, whether by deed or other writing or by parol. "Whether the instrument, it not being apparent on its face, is to be regarded as a mortgage, depends upon the circumstances under which it was made, and the relations subsisting between the parties. Evidence ot these circumstances and relations is admitted, not for the purpose of contradicting or varying the deed, but to establish an equity superior to its terms. It is against the policy of the law to allow irredeemable mortgages, just as it is against the policy of the law to allow the creation of inalienable estates. Under no circumstances will equity permit this end to be effected, either by express stipulation or the absolute form of the instrument. The rule which refuses the admission of parol evidence to contradict or vary written instruments; is directed
From these views, which are most amply sustained by the authorities it must result, that whether an absolute deed will take effect as a mortgage, must depend on the real character
Though a deed be executed conveying property absolutely, yet, if it can be shown,by the circumstances surrounding the case or bj7 parol evidence, that the deed was executed as a security for an antecedent debt, payment o.f the debt will necessarily defeat the deed. So too, if the deed absolute on its face is shown by the surrounding circumstances or by parol proof to have been given as a security for money loaned, the courts of equity will always treat such absolute deed as a mortgage, and it will be defeated by the return ol the money borrowed and the interest thereon. Such parol evidence does not contradict the instrument, but simply establishes the existence of a superior equity, which the grantor will not be allowed to disregard.
It is a great mistake to suppose, that the courts have treated as mortgages absolute deeds or have enforced, after the payment of the debt, a re-conveyance only where what was interpreted as an agreement for a re-conveyance was in writing, as in Davis v. Demming, 12 W. Va. 246. On the contrary the cases, in which on parol evidence and proof of the situation and surrounding circumstances courts of equity have treated as mortgages deeds absolute on their face, and where there was not a particle of evidence in writing to show, that a mortgage was intended, are exceedingly numerous. It is the settled practice, so far as I can ascertain, in every State in this Hnion as well as in the courts of the Hnited States and England, that a deed absolute on its face may be declared by a court of equity as a mortgage, upon this being-shown to be the real transaction by the simple parol proof of the situation of the parties and the surrounding circumstances, when the absolute deed was executed, though not a scintilla of written evidence be produced to show, that such absolute deed was intended as a mortgage.
The evidence thus admitted being extended to the mere verbal declarations of the grantor, made when the transaction was occurring or subsequently, the declarations being of such a character that the court might draw from them the
See Stapp v. Phelps, 7 Dana 297; bottom page 190 ; Crane v. Buchanan et al., 29 Ind. 570; Pierce v. Robinson, 13 Cal. 117; Lodge v. Turman et al., 24 Cal. 385; Key v. McCleary, 25 Iowa 191; Moore v. Wade, 8 Kan. 380; Emerson v. Atwater, 7 Mich. 12; Johnson v. Huston, 17 Mo. 58; Sweet v. Parker, 22 N. J. 453; Strong v. Stewart, 4 Johns. Chy. R. 167; Walton v. Cronly, 14 Wend. 63; Van Buren v. Olmstead, 5 Paige 9; Horn v. Keteltas, 46 N. Y. 605; Hills et ux. v. Loomis, 42 Vt. 562; Mann v. Falcon, 25 Tex. 271; Hauser et al. v. Lash, 2 Dev. & B. Eq. 212; Bentley et ux. v. Phelps, 2 Woodb. & M. 426; Russel v. Southard et al., 12 How. 139; Ross v. Norvell, 1 Wash. 14; Robertson v. Campbell & Wheeler, 2 Call 421, (top page 354); King v. Newman, 2 Munf. 40; Dubois et al v. Lawrence et al., 16 W. Va. 443:
The ground on which these and numerous other decisions to the like effect can be safely aud properly rested, though it has not in all cases been so stated, is thus well stated by the vice-chancellor in Stewart v. Parker, 22 N. J. Eq. R. (7 C. E. Green) p. 457: “The efficacy of the parol evidence is not to establish an agreement to recovery, the specific performance of which the courts will enforce, but to establish the true nature and effect of the instrument by showing the object with which it was made. It is well settled that this may be done. The question is, whether the transaction was a sale and conveyance, or whether it is a security for a loan. Any means of proof may be used to show it to be the latter; the declarations of the parties; the relation existing between them; the value of the property compared with the money paid; the understanding that the sums advanced should be repaid, and the payment of interest meanwhile on the amount. The distinction between parol evidence to vary a written instrument, and parol evidence showing facts which control its operation, is employed to reconcile the allowance of such proof with the statute of
The examination of these cases will show, that this parol proof thus freely admitted to establish, that a deed, really on its face an absolute or conditional sale, was according to the purpose'and intention of the parties a mortgage, although purposely put in the form of an absolute or conditional sale, consisted largely of proof of the relative situation of the parties and of their surrounding circumstances and conduct. But parol declarations have been freely admitted, though, if unaided by the situation of the parties, their conduct and the surrounding circumstances, it would be difficult but not impossible to convert an absolute deed into a mortgage by the mere verbal declaration of the parties.
"With reference to the situation of the parties, it has always been regarded as a very material fact tending to show, that the transaction was a mortgage and not a sale, that the grantor was in a needy condition and hard pressed for money; that the grantee was a known money lender; that the actual execution' of the absolute deed was preceded by a negotiation for a loan; and the parties did not apparently contemplate the value of the land when the deed was made. Another very important fact, which raises a strong presumption in favor of the transaction being a mortgage is, that the price professed to have been given for the land, on the face of the deed, is a grossly inadequate price. This is often commented on by the courts as a strong circumstance to show, that an absolute sale was not intended; and though it was made to assume that form designedly, yet, the court being satisfied that the real transaction was a loan, will treat the absolute deed as a mortgage. The fact, that the possession of the land after the absolute deed of it was made, remained with the grantor, has always been regarded as a strong indication, that the real transaction was a mortgage; though it is usual
That these are the facts and circumstances surrounding the parties, which are habitually considered as having a strong bearing on the questions, whether an absolute or conditional sale on the face of a deed is to be held a mortgage, is fully illustrated by very many cases. I refer here to a few of these cases to be found in the books, in which one or all of the circumstances I have named,, had been relied on as strong grounds for raising a presumption, .that the sale though absolute on the face of the deed, was really but a mortgage, and ought to be so held by a court of equity.
See Todd v. Campbell et al., 32 Pa. (8 cases) 250; Fuller v. Parrish, 3 Mich. 218; Bentley et ux. v. Phelps, 2 Woodb. & M. 426; Sellers v. Stalcup, 7 Ired. Eq. 13; Hamet v. Dundass, 4 Barr 178; Russell v. Southard et al., 12 How. 139; Conway v. Alexander, 7 Cranch 241; Morris v. Nixon, 1 How. 126; Vernon v. Bethell, 2 Eden. 110; Oldham v. Halley, 2 J. J. Mar. 114; Edvington v. Harper, 3 J. J. Mar. 354; Davis v. Stonestreet, 4 Ind. 101; Emmerson v. Atwater, 7 Mich. 24; Wilson v. Patrick, 34 Ia. 362; Campbell v. Dearborne, 109 Mass. 144; English v. Lane, Porter, (Ala.) 328; Hills et al. v. Loomis, 42 Vt. 562; Wright v. Bates & Niles, 13 Vt. 349; Lock’s Ex’or v. Palmer, 26 Ala. p. 312; Davis, Com., v. Demming, 12 W. Va. 247, syl. 8; Dubois et al. v. Lawrence, 16 W. Va. 443, syl. 2.
Having laid down the principles of law, which should govern in determining, whether a deed absolute on its face should be regarded by a court of equity as a mortgage, I propose now to apply these principles to the determination of the most important question in this cause; that is, whether on tlie proofs in this cause, on the 23d day of September, 1875, the circuit court was justified in making the order to try the issue; “whether or not the transactions between the plaintifl and the defendant, Hoffman, of the 10th of June, 1868, conveying the land in the bill described, and the pay
When there is such a conflict of evidence as to make it doubtful on which side is the preponderance, an issue'ought to be directed. This is the rule laid down by this Court in Jarrett et al. v. Jarrett, 11 W. Va. 585, syl. 15. Was there on this question, ordered to be tried by the jury, such a conflict as this in.the evidence in the cause when this issue was ordered ? Only four witnesses had been then examined; first the plaintiff himself, who proved that the transaction referred to in the issue, was a usurious loan of money to him by the defendant, Hoffman. He stated the facts substantially as set forth in the bill, and these facts have been stated in the opinion of Judge Snyder and need not be repeated; second, Protzman, who testified that in 1868 or 1869, he did not remember whether in the fall or spring, but it was about the time Joe Grrubb was pressing Vangilder for his debt; he had several conversations with Hoffman. In the first conversation he told him, that he guessed he would have to furnish Vangilder with the money to help him out; and subsequently he told him, that Vangilder was to pay him for this money only six per cent, interest, and in addition thereto the six or eight acre lpts next to Beck Swisher. Hoffman' was to make him a deed for the whole land, and Vangilder was to re-convey to him all the land except these lots. He thought this last conversation was in 1869; but could not fix the date. The same thing in substauce was stated in several different conversations. He was well acquainted with both Hoffman and Vangilder and also with the land, a part of which he at one time thought of buying, but did not buy it. This was about 1872. He then offered thirty-five dollars per acre for what he wanted to purchase. He did not state when these conversations took place nor who was present, not being asked any question in reference thereto, either by the plaiu-tiff or by the defendant, though he was cross-examined.
The third witness, Weaver, testified, that he was well acquainted with Hoffman, and thinks he lived on his farm in 1868. In the spring or summer of 1868, he had several conversations with Hoffman in reference to his loaning Van-
These were the only witnesses examined by the plaintiff, and no witness was examined by the defendant except Hoffman himself. His testimony is given at considerable length by brother Snyder, and it need not be repeated. In all important respects it was a contradiction of the testimony of Vangilder, Protzman and Weaver. Of course the evidence of both Protzman and Weaver, would be more likely to be ei’roneous on account of defective memory, than that of the plaintiff or defedant, both of whom were directly interested in these transactions and were parties to them. Still if Protzman is to be relied upon, and he is unimpeached, there is little probability of his being so far mistaken as that there couldhave been no loan of money, by Hoffman to Vangilder, at usurious rates of interest. His evidence is clear and positive, and too much in detail to justify the inference, that no
Nor can I see anything in the evidence of Weaver, which would justify the belief that he was testifying falsely. It It is true his testimony shows, that he was an ignorant man. But bearing in mind that he was but a laborer and an ignorant man, his cross-examination did not show such an ignorance of matters about which he ought to have known, as to justify an inference that he was testifying falsely. His ignorance of these matters, it seems to me, was not Unnatural when we bear in mind, that he was testifying in reference to matters occurring five or six years before he was examined.
The testimony of Hoffman shows on its face, that he was a very intelligent witness, and it is impossible to reconcile his testimony with that of the plaintiff and his two witnesses. The conflict between them is such, that the only possible inference to be drawn is, that false statements were designedly made by the one' side or other. They cannot both be regarded as truthful statements by the most charitable view which can be taken as to their failure of memory. The only inference which can be drawn is, that on the one side or the other there have been false statements designedly made.
There are however some minor matters, in which they do
It does strike me as highly improbable, that there should be an agreement that Hoffman should re-convey a portion of this land, and that there' should not have been, as Hoffman says there was not, any understanding as to the quantity of the land to be re-conveyed, or the price which Vangilder was to pay for it. It is claimed however, that the circumstances surrounding this transaction, the subsequent conduct of the parties and the written evidence, which was before the court when this issue was directed show, that the testimony in behalf of the plaintiff, is utterly irreconcilable with what must have been the real transaction, and establish clearly, that the defendant Hoffinan, in his testimony, stated the facts as they must have really occurred; and therefore this issue ought not to have been directed.
The simple fact, that the evidence which was before the jury, was substantially the same as that before the court, it
The plaintiff, Vangilder, was a poor and improvident man and rather an ignorant one; his occupation was farming and chain making, blacksmithing I suppose is meant. The defendant, TIoffman, was apparently an intelligent man of considerable wealth; his occupation was farming and he was a lender of money, and known as such. It is true he denies, that he was at the date of this transaction a banker and broker; this denial being based on the fact, that he had then no license as such, he having afterwards got his license as a banker and broker with two others who furnished some capital; they together constituting a licensed partnership after this transaction, as bankers and brokers, but the evidence show's, that he was at the time of this transaction a lender of money and known as such to the community.
As to the situation and pecuniary circumstances of Van-gilder, and his want of providence, Hoffman, in his deposition states: “I told him that in the way he was managing things, I did not think he would have a home of his own in a few years.” Joseph Grubb, to whom Vangilder owed a debt of one thousand one hundred and twenty-four dollars and sixty-seven cents, then secured bjr a deed of trust on his land, vuis urging the payment of the debt, and threatening to have the land sold under the deed of trust. Vangilder, by others as well as in person applied to Hoffman to lend
The deed made by Yangilder and wife to Hoffman, June 10, 1868, states on its face, that the consideration was the payment by7 Hoffman of the amount of this Grubb debt. Its amount was, including interest due on it, one thousand one hundred and twenty-four dollars and sixty-seven cents. While the value of the land is not clearly shown by the evidence, it is apparent from the depositions and proof then in the case, that this was a grossly inadequate price for this land then, if it could be regarded as a sale.
This tract of land contained ninety-six acres, and in less than two years and a half Hoffman sold twenty-five acres of it for one thousand one hundred and twenty dollars, or for just about what he gave for the whole tract. It is true that he had improved the laud considerably, but as an offset to some extent to this, it is shown, that he sold more than halt of this twenty-five acres at a small price, as is admitted in Hoffman’s answer. We may certainly say on the proof then in this case, that this tract of land was certainly worth more than twice the amount of this Grubb debt, which was a lien upon it. Some of the estimates would make it worth three times as much as the Grubb debt. Now when this'deed is considered in connection with the fact, that the consideration in it was so grossly inadequate and with the admitted fact, that there had been prior to its execution, negotiations for the borrowing of the exact sum secured in the deed one thousand one hundred and twenty four dollars and sixty-seven cents to pay off the Grubb debt, it certainly raises a very strong presumption, that the testimony on behalf of the plaintiff to show, that it was understood and agreed that it should be a mortgage to secure this one thousand one hundred and twenty-four dollars and sixty-seven cents, and not a sale of the land, represents the real transaction. If it had
In this case, from the evidence the land was worth probably twentyftive dollars per acre, and if it had been a saleas is claimed, we would have expected the consideration named in the deed to be two thousand four hundred dollars, or some other even sum. But if this was intended as a mortgage, there was no necessity for- any nicety in the valuation of the land nor indeed was there any necessity for any accurate inquiry as to the quantity of land in the tract, as it was ample security for the money loaned whatever might be the exact quantity of the land. And accordingly we find, that this land is described in the deed as containing one hundred acres-more or less. The record discloses no real difficulty in ascertaining the true quantity in this tract, ninety-six acres, and there is no controversy about the quantity. This insertion of the quantity in round numbers as one hundred acres, seems to me as well as the naming of the price in dollars and cents, as indications that this transaction was not a real sale. Both of these circumstances are such as would naturally have occurred had this transaction been a mortgage, and neither of them would naturally have occurred had it been a sale.
Again it is proven by the testimony of Hoffman himself, that after this deed to him, though he was entitled to the immediate possession of the land according to the terms of the sale and of the deed, yet he took possession under the deed of only the two lots, which by the evidence of the plaintiff and his witnesses, he was to have as a premium beyond six per cent, for the money he loaned. These lots he commenced at once to improve, at a cost exceeding one hundred dollars. But the balance of the tract he did not take possession of in any manner, but it continued under the control of Yangilder, just as it had been before the’ deed was made. This circumstance is certainly a Corroboration of the statement of the plaintiff’s witnesses, that except as to these two lots this transaction was not understood to be a sale of the land, but only a mortgage to secure the money loaned.
The following are a few of the many decisions, which have been rendered, in which some or all of these circumstances were regarded by the courts as entitled to great weight in deciding, whether a deed absolute on its face was a mortgage. See Wilson v. Patrick et al., 34 Ia. 362; Bentley et ux. v. Phelps, Woodb. & M. 430, 431; Sellers v. Stalcup, 7 Ired. Eq. 13; Russell v. Southard et al., 12 How. 139; Davis v. Stonestreet, 4 Ind. 102; Ruffier v. Womack, 3 Tex. 332.
If these were all the circumstances in the case, it seems to me the court on the parol evidence before it corroborated by these circumstances might well have decided itself, that this transaction was a mortgage and not an absolute sale. And under the rule we have laid down, he would not have been justified in ordering the issue. But there were other circumstances, which to a certain extent tended to show, that the position of the defendant, Hoffman, that this transaction was 'an absolute sale might be correct. According to the testimony of Vangilder and the two witnesses'for the plaintiff, the absolute deed from him and his wife on June 10, 1868, was to have been followed at once by a deed from the ven-dee, Hoffman, to Vangilder, the vendor, of all the land except the two lots, -which he was to reserve as a premium for his loan beyond the six per cent, interest; and in the re-conveyance to Vangilder, Hoffman was to reserve a vendor’s lien or take some other lien for the amount of money he had loaned, bearing six per cent, interest. Now instead of this being done at once, no reconveyance of any part of this land was made for nearly seven months, that is, till January 4, 1869. When this re-conveyance however was made, so far as the vendor’s lien was concerned, it corresponded with the statement of the plaintiff and his witness, and it reserved
This exceeded the amount loaned by three dollars and ninety-nine cents, but this was a simple mistake of calculation as sufficiently appears from Hoffman’s evidence. This sum, for which this vendor’s lien is thus reserved in the deed of July 4, 1869, was called purchase-mone3r, but was really it would seem the amount loaned to.Vangilder to pay off the Grubb debt. But this deed differs from the contract, as proven by the plaintiff and his two witnesses in this important respect, that it conveyed to Vangilder only seventy-one acres, reserving to Hoffman twenty-five acres instead of these two lots of seven and eight acres. This deed of January 4, 1869, it is claimed, proves conclusively the truth of Hoffman’s statement, that the deed of June 10, 1868, was an absolute sale to him of the entire tract of land for one thousand one hundred and twenty-four dollars and sixty-seven cents cash, and that this deed from Hoffman to him was as he says, a subsequent sale by him to Vangilder of this same tract, less twenty-five acres at the same price.
These twenty-five acres so reserved, were subsequently sold for nearly the same price, that is, for one .thousand one hundred and twenty dollars. So that, according to that view, Vangilder sells his land to Hoffman, and in seven months thereafter re-buys about one half of it in value for what he got for the whole. In other w'ords, he sells his land and in seven months re-purchases it at double price. This certainly seems in the highest degree improbable, unless it was the result of fraud and gross oppression on the part of Hoffman. But is it true, that these deeds do as it is contended that they do, clearly establish, that the first deed made by Vangilder to Hoffman, was an absolute sale of all his lands at half their value, and that there was no understanding or agreement, that any portion of it was to be reconveyed to Vangilder, as is testified by these witnesses for plaintiff?
Now is not the statement ot Vangilder and his two witnesses, that both the terms on which this reconveyance was to be made and the quantity and location of the land to be reconveyed, were then agreed on, far more probable than this story of Hoffman’s? Of what possible value to Vangilder was it, when he was selling his land at half price, that there should be a reconveyance of a part of it to him, if as Hoffman says, he Hoffman was to convey only so much as he pleased and at such price as he pleased ? It seems to me, that if there was any such understanding as Hoffman admits and in which he is confirmed by all the witnesses, then it would be almost certain, that the quantity and price of the land to be reconveyed must have been also agreed upon. Such an understanding, of which Hoffman speaks, if thus utterly indefinite, was really and in truth no understanding.
But how, it may be asked, can the delay of Vangilder in demanding this reconveyance, if there was such an understanding, be accounted for? In the first place he remained in the possession of all the land, which it was thus understood was to be reconveyed to him, and it is not pretended, that he was charged any rent for its use. This might well satisfy an ignorant man, who would probably attach but small value to the making of a deed, provided he was left in possession of the laud and no claim to it was set up by Hoffman, for'it must be remembered, that Hoffman only took possession of
But it is claimed, that the fact that twenty-five acres of the tract were not contained in this deed from Hoffman to Van-gilder is conclusive proof, that there could not have been seven months before an agreement, that he was to reserve only two lots of seven or eight acres. In his bill, which is sworn to, Vangilder says, that he called Hoffman’s attention to the fact, that the deed of January 4,1869, to him by Hoffman, was not in accordance with the agreement between them, as it reserved too much land for Hoffman; and that Hoffman said he would make the matter right, that he intended to convey to Vangilder’s wife fifteen acres; and this quieted his fears for the time being. This is denied by Hoffman, and it is not proven. But be that as it may, it seems to me,'as Hoffman had then an absolute deed for his entire tract of land, and he Vangilder was as he might well suppose in Hoffman’s power, the acceptance of this deed ought not necessarily to be regarded by the Court as conclusive evidence, that there never had been such a contract as was proven by the plaintiff and two other witnesses, especially when their statements had been so strongly confirmed by the surrounding circumstances, as well as by • the conduct of the defendant Hoffman to that time in leaving Vangilder' in possession of all the land except the two lots, which Vangilder claims, was all that Hoffman was to retain, and which two lots alone Hoffman had up to that time taken possession of or improved.
" The same remarks apply to the conveyance of ten acres more for- a consideration of four hundred and fifty dollars to
These views are fully sustained by the authorities. It is a maxim of courts of equity, that “once a mortgage always a mortgage;” and this well established maxim does not cease to be applicable on the execution of the deed, but it will on the contrary invalidate a subsequent agreement tending to preclude the exercise of the right of .redemption; and the burden of proof is always on the mortgagee to show, that a sale or release of a mortgager’s equity of redemption was made deliberately and for an adequate consideration. See Dougherty v. McColgan, 6 Gill. & Johns. 275; Mills v. Mills, 26 Conn. 213; Perkins v. Drye, 3 Dana 174; Hyndman v. Hyndman, 19 Vt. 9; Locke v. Palmer, 26 Ala. 312-323; Brown v. Gaffney, 28 Ill. 149; Baugher v. Merryman, 32 Md. 185.
The law on this point is thus stated by Justice Swayne in Villa v. Rodriguez, 12 Wall. 339: “When the mortgager has conveyed to the mortgagee the equity of redemption, the law upon the right to redeem is guarded by a jeajous and salutary policy. Principles almost as stern are applied as those, which govern where a sale by a cestui que trust to his trustee is drawn in question. To give validity to such a sale by a mortgager
It is true, that the transaction of January 4, 1869, did not assume the shape of a sale or release of his equity of redemption by Vangilder to Hoffman, and it could not possibly have assumed this shape for the mortgage had been given the form of an absolute deed in the conveyance by Vangil-der to Hoffman, of June 10, 1868. But if this conveyance was really a mortgage in its effect-, as we have seen, there were very strong reasons for holding, that the deed from Hoffman to Vangilder of January 4, 1869, was in its legal effect a surrender or release of this equity of redemption, on the principles laid down by Judge Swayne in Villa v. Rodriguez, 12 Wall. 339. It has not, in the language of Judge Swayne, been shown “that the conduct of the mortgagee, Hoffman, was in all things fair and frank, and that he paid tor the property what it was worth.”
By the effect of the deed of January 4, 1869, Hoffman, the mortgagee, paid for this equity of redemption, worth more than one thousand dollars, really nothing at all; the only thing actually given for it was a loan of one thousand one hundred and sixty-six dollars for five years, for which loan the mortgager was required to pay interest at the rate of six per cent, per annum.. The continued possesesion of the land by the mortgager, Vangilder, for five years under
The evidence tending, as we have seen, to show, that the original transactions between Hoffman and Vangilder of July 1868 was a loan of money at usurious interest, secured by what was in the view of a court of equity a mortgage, though the instrument executed by Vangilder to secure this money was iii the form of an absolute conveyance of his land to Hoffman, it is immaterial what was the form of the conveyance or instrument whereby Vangilder in effect surrendered his equity of redemption on January 4, 1869, for as Justice Swayne says on page 339 of Villa v. Rodriguez: “The form of the instrument is immaterial, and even if the mortgager knowingly surrendered and never intended to redeem his equity of redemption, it is of no consequence.” And yet, this has been claimed as conclusive against him in the argument of this cause.
What we have said of this conveyance by Hoffman to Vangilder of seventy-one acres of his Vangilder’s land, on January 4, 1871, applies of course with equal force to the conveyance of the fifteen acres on February 8, 1870. This, in effect, was but the completion of his Vangilder’s surrender, without consideration, of his equity of redemption evidenced by the fact, that Hoffman then had him completely in his power, as both parties believed. It was but a consummation of what was commenced in January, 1869. The fact, that the plaintiff’s evidence tending strongly to show, that the transactions of July, 1868, 'were in truth a loan of money by Hoffman at usurious interest, secured by what a court of equity would regard as a mortgage, “is utterly irreconcilable with the documentary evidence in the cause.” So far from' being conclusive evidence against this being a mortgage, executed to secure a loan at usurious interest, it is in my judgment entitled to very little weight; for as Justice Swayne says, the form of the instrument in such cases is immaterial.
As a matter of course, no usurer would allow the docu
It is certainly true, that all the documentary evidence in this cause is utterly irreconcilable with the idea, that the transaction between Hoffman and Vangilder was a loan at usurious interest secured by a mortgage, and is also at variance with all of the evidence on behalf of the plaintiff. But what of this ? Is not this always the case ? Could we ever expect it to be otherwise? Can a single reported case be found in which it has been held, that a transaction was a loan at usurious interest secured by a mortgage, where the documentary evidence was not in irreconcilable conflict with the parol evidence or with the circumstances surrounding the case, as I think they are in this case?
It is true, “that none of the conveyances contain any recognition of an agreement for a reconveyance of all or any part of the land, to the plaintiff, Vangilder; ” and it is also certainly true, “that there was no separate or collateral instrument giving the plaintiff, Vangilder, the right to repurchase or to have a reconveyance of the land or any part of it.” Nor could we have in such a case any right to anticipate, that these conveyances would have set out the real facts of the case, if this was a usurious loan. But it is not correct to say, “ that the whole claim of the plaintiff rests upon the mere verbal statements of the appellant, gathered from casual conversations.” It is also sustained by the positive testimony of the plaintiff himself, who was cognizant of all the facts, as well as by a witness, who was acting for one or both of the.parties in the negotiation between them; and above all, it is strongly corroborated by the facts and circumstances surrounding the parties, and also by the admissions of the
It is not to me incredible, that the plaintiff Yangilder an ignorant man, should in a matter of so much importance, take the hazard of thus establishing the agreement. The books are full of instances of just such conduct under like circumstances. Yangilder was about to have all his lands sold for cash, probably at a ruinous sacrifice. He could prevent this only by taking this hazard; for as a matter of course Hoffman would not lend him money at usurious rates of interest, if Yangilder had insisted, that the true nature of the transaction should appear on the face of the documentary evidence! If it had so aj)peared, Hoffman would have run the risk of almost certainly losing all the money which he had loaned. Nor is it strange, that the subsequent documentary evidence does not disclose the true nature of the transaction, for if it had, the same results would have followed. Neither is it sur-passingly strange, that Yangilder should have permitted these subsequent deeds to exhibit the transaction as no loan of money at usurious interest, for when these subsequent deeds were executed both parties were convinced, that Yan-gilder was completely in the power of Hoffman; and he may well have been willing to suffer even the wrongs which he did rather than to suffer much greater wrongs.
It is a great mistake to suppose, that in all the reported cases, as in Davis v. Demming et al., 12 W. Va. 246, where a re-conveyance has been directed, there was some collateral contract in writing. In very many of the reported eases such was not the case, as for instance in Dubois v. Lawrence, 16 W. Va. 443. The fact, that in this case there was no such written contract, had there been no usury in the transaction, would have been some evidence, that there was no such contract or understanding; but even then it would not have been such strong presumptive evidence, that it would not have been overcome by parol proof, such as appears in this case. If the contract wras usurious, the fact that there
I can not attach much importance to the fact, that the plaintiff Yangilder acquiesced for so long a time in the alleged wrongs of the defendant Hoffman. Till the defendant Hoffman took steps to deprive Yangilder of the possession and use of his land, which he was enjoying without the payment of any rent, it does not seem to me unnatural, that Yangilder a poor and ignorant man, should not begin a litigation with Hoffman a wealthy and intelligent man. He instituted this suit, as soon as Hoffman undertook to exercise his pretended l-ights in such a manner as to subject him Yan-gilder to actual and real present injui-y; and this is all perhaps which could have been expected from him, when we consider the relative position of the two parties. Such acquiescence as this is far from conclusive.
In Dubois et al. v. Lawrence et al., 16 W. Va. 443, there was an acquiescence of this character by Lawrence for twenty years, aud yet it was not held as being conclusive against Lawrence by this Court; but an absolute deed'was declared to be a mortgage, although it had been recorded twenty years without any attempt to have it so declared. This long acquiescence was not considered conclusive, because Lawrence had been permitted to remain in possession of the land, and the suit was instituted promptly when he was disturbed in the possession. So too was this suit promptly instituted, when Yangilder was about to be deprived of his possession. The time, which has elapsed in this case, was but a little over five years. But it is said, that if “it were conceded that there was in fact a parol agreement for a ro-conveyanee of a portion of this land, still it could not avail the plaintiff Yan-gilder, because the transaction was closed by the conveyance of June 10, 1868, and the payment of the money by Hoffman on July 15, 1868. And the plaintiff Yangilder could not enforce the specific execution of his parol agreement of a trust or interest in said land, as by the statute of frauds such an agreement is absolutely void; and a court of equity would not enforce such a trust.”
The cases referred to as sustaining the position, that a court of equity will not enforce such a parol agreement are, Lear v. Chouteau, 23 Ill. 39; Pinnock v. Clough, 16 Vt. 500; Patton v. Horn, 1 Grant Cas. (Pa.) 301; Botsford v. Burr, 2 Johns. Chy. 405; Irwin v. Ivers, 7 Ind. 308; Whiting v. Gould, 2 Wis. 552; Conner v. Lewis, 16 Me. 268; Harris v. Barnett, 3 Gratt. 339. But these cases are in my estimation entirely foreign to the subject under discussion.
Though there are numerous cases, very many of which I have cited, expressly deciding, that such a parol agreement to re-convey land made, when an absolute conveyance is executed, will be' enforced, or such absolute deed will be declared to be a mortgage upon parol proof only, and though not one case can be found, so far as I know, laying down a contrary doctrine, yet it is suggested, that we should establish the contrary doctrine from a fancied'analagy to other cases, in which the statute of frauds has been decided to be applicable. I do not deem it necessary to review these cases cited. An examination of them will show, that they bear no analogy to the case before us, and the very courts in which they were all decided show by the numerous cases I have cited, that they regard them as entirely inapplicable to such a case as this, for all these courts have held, that an absolute deed may he shown by parol proof to be either a mortgage or a conditional sale, that is, a sale with a right on the part of the vendor to repurchase.
It is said however, that there was no consideration for such parol agreement and that it was therefore void. Was there not precisely the same consideration for it as exists in every
It is argued, that the transactions of June 10, 1868, January, 1869, and of February, 1870, were entirely distinct transactions, having no connection with each other, and that if there was usury in the transaction of June 10, 1868, they were finally closed on June 15,1868, when Hoffman paid the money; and there is no pretence, that there was any usury in these subsequent transactions or in the subsequent trust deed executed to secure debts contracted long after June 10, 1868. Of course this is true if there be no connection in these various transactions. But all the witnesses of the plaintiff testified, that the transactions of June 10,1868, were not then concluded, but wore to be concluded by a recon-veyance of a part of said land by Hoffman to Vangilder; and the circumstances strongly show that this was the truth. These subsequent conveyances then were not independent transactions, but were a carrying out in an imperfect and wrongful manner of the original contract made January 10, 1868, which contract there is strong reason to believe was usurious.' It is it seems to me not administering our statute law justly to assume, that defence of usury should always be regarded as an uncousionable defence and, that it should not receive the favor of either courts of law or equity; on the contrary this may be often the only defence, which can be made to defeat the grossest injustice and wrong. But, whether the defence should in any case be relied upon, is not a matter for the courts but for the borrower only to determine; and if it is relied upon, the courts do not, as I conceive, show any disfavor to such defence; but if the usury is shown, they will without reluctance or hesitation enforce the law.
It is true, that when by.the usury laws the principal of the money was to be forfeited, the courts did require clear and satisfactory proof of the usury, though not such a measure ot ■proof as we have shown is required to convict in á criminal
Now while the leanings of the court are against holding a loan to be usurious, yet, as we have seen, the leanings of the courts in a case of this description' is always in favor of a conveyance being a mortgage rather than an absolute sale.. And if following this tendency of the courts we hold the deed of June 10, 1868, to be a mortgage, then the proof is full that it was tainted with usury, and the court could not reach a contrary conclusion, no matter how strong its leaning might be against the usury.
Hpon the whole I am of opinion, that on the 23d of September, 1875, when the circuit com’t directed the issue to be tried, whether there was usury in these transactions, there was a conflict of evidence on the question, but it was of such a character, that if the circuit court had without directing an issue decided, that there was usury in these transactions, I could not for that reason have been for reversing the decision; and as a matter of course the lender, Hoffman, can not complain, that this issue was ordered, and that he was afforded a chance of mending his case and making it stronger before the jury. Had the jury determined, that there was no usury in this transaction, then this Court would have had to determine, whether the circuit court erred in directing this issue; for if the jury found otherwise, there would be no necessity for us to determine, whether the circuit court erred in directing this issue; as according to my view of the law and the evidence it certainly did not err to the prejudice of the appellant; but I will say further, that I do not think it committed any error in this case in directing this issue. It is true in my opinion there was a preponderance of evidence to establish these transactions as usurious, still I cannot say, that the evidence was not so nearly balanced as to leave some room for doubt, on which side was the preponderance. I think the preponderance was in favor of the usurious character of this transaction, and that this preponderance is so
This great difference of opinion, as to what the facts in this case prove, is itself sufficient to satisfy my mind, that I must be mistaken in my own conclusion, that there is no doubt but that the preponderance of evidence is so decided as to render it not doubtful, on which side it is; and for this reason I think the circuit judge did not err in directing this issue to be tried by the jury. The'evidence before the jury was substantially the same as that before the court when it ordered this issue; and of con rse my opinion is. that the verdict of the jury finding these transactions to be usurious ought not to be disturbed, it being in accordance with the weight of the evidence. It was therefore the duty of the circuit court to enter its decree in accordance with this verdict. This the circuit court in its decree of March 28, 1878, and September 15, 1879, appears to have attempted to do. But it seems to me to have erred in the conclusion it reached, because it did not properly comprehend what relief the plaintiff was entitled to, uuder the bill filed by him in this cause.
I concur with brother Snyder in his opinion, that this bill was not framed in the manner required, when relief is sought under section 10 of chapter 141 of the Code of Virginia, -which vras in force when these transactions took place; and I also concur with him in the opinion, that it was sufficiently well framed to bring it under the operation of the seventh section of this chapter, also in force at that time.
It is not necessary for us to determine the controversies in the court below as to the price, at which the land retained by Hoffman and not re-conveyed to Vangilder or to Vangilder’s wife, should be charged to Hoffman as payments on said debt, as it is clear, that any reasonable price, which could be' put on said land, would with the other payments made have paid off the principal of the debt due from Vangilder and secured by the deed of trust, which is all that is important in deciding this cause.
The circuit court of Monongalia county ought therefore by its final decree of September 15, 1879, to have simply decreed, that the injunction which it had granted should be perpetuated as to all the debts secured by it, and ought not.to have excepted therefrom said one hundred and six dollar’s and thirty-five cents with interest. This decree therefore of September 15, 1879, must be reversed and annulled; and the appellee Van-gilder as the party substantially prevailing must recover of the appellant IToftman his costs in this Court expended, and this Court must enter up such decree as the said circuit court should have done; that is, that the injunction awarded by S.
Decree Reversed.
The other decisions announced at this term were reported in volume xxi.