12 Wall. 323
U.S.
1871
Mr. Justice SWAYNE

delivered the opinion of the court.

This is an'appeal in equity from the decree of the Circuit Court of the United States for the District of California. The appellant was the complainant in the court below. The decree was against him.

He seeks to redeem the premises in controversy according to the prayer of his bill. The defendant, Rodriguez, claims an indefeasible estate _in them as regards the complainant and those from whom he derives title. The other defendants claim under a contract of purchase made with Rodriguez. The validity of the complainant’s title, if his grantor had anything to convey, is not questioned. Nor is the original title of his grantor and of those who conveyed to him denied. But the defendants insist that the title of all those parties was vested absolutely in Rodriguez by deeds duly made and recorded before the conveyances to the complainant and his grantor were executed. The complainant insists that Rodriguez, after, as before, the legal title was conveyed to him, held the premises only as-security for a debt. This is the hinge of the controversy between the parties.

The entire, tract, of which the premises- in controversy form a part, was conveyed by José Maria Villavicencia on the 13th of April, 1852, to his seven children. He died in 1853. The widow and five of the children conveyed to Fulgencio, also one of the children, on the 16th of December, 1867. On the 26th of the same month Fulgencio conveyed to the complainant. By virtue of this conveyance he claims six-sevenths of the tract. That proportion is his if his title be valid.

The widow is the sister of the defendant, Rodriguez. On the 4th of December, 1860, she and three of the children, .the other four beiug under age, executed to Rodriguez, for money then borrowed, a note for four thousand dollars, payable a year from date, and bearing interest at the rate of two per cent, a month, payable at the end of each six mouths thereafter; the interest, “ if not so paid, to be added to the principal and draw interest at the same rate, compounding in the same manner.” A mortgage upon the entire tract was given- at the same time by the makers of the note to secure its payment. The mortgage contained a provision, that in- default of the payment of the interest as stipulated, the principal should' become due and payable at the option of the mortgagee, and that the mortgage might thereupon be foreclosed and the premises-sold to satisfy the mortgage debt, and that out of the proceeds of the sale the mortgagee should be authorized to retain, besides his debt and costs, a counsel fee of fi-ve per cent, upon the amount found to be duo. The mortgage contained a further provision that the mortgagee might pay all taxes aud incumbrances on the property, and- that the-- amount of such advances should be secured by the mortgage, arid should also bear interest at the rate of two per cent, per month. Rodriguez subsequently paid $1172 to redeem the property from a sale for taxes. On the 29th of April, 1864, the widow and five of the children conveyed to him by a 'deed absolute in form. It is recited in the deed that the debt secured by the mortgage then amounted to about $10,000. On the 17th of February, 1865, one of the children, who was a minor when this deed was executed, and hence had not joined in it, also conveyed to Rodriguez. Nothing was paid to the grantor. On the 20th of May, 1865, thé other and seventh child, who had then become of age, exécuted a like conveyance. The consideration paid was $1.00.

On the 22d of July, 1866, Rodriguez demised the premises so conveyed to him to his co-defendants, Edgar W., Isaac C., and Rensselaer E. Steele. The defendant, George Steele, subsequently became interested in this contract by an arrangement with the lessees. The leasehold term was for five years from the 1st of August, ensuing its date. Rodriguez stipulated that at the end of-the term or within five days thereafter the lessees might purchase by paying him $25,000 in gold, and upon such payment being so made he covenanted that he would, by a sufficient deed, release and quit-claim to the lessees or their heirs and assigns, free from all incumbrances created -by him, all the right and title, which he then'had to the premises or which he might thereafter acquire from the United' States or from, any of the heirs of José Maria Villavieencia.

The lessees and their assignees insist that they are bond fide purchasers without notice.

This proposition cannot be maintained. The contract gave.them the option — it did not bind them — to'buy at the time specified. That time had not arrived when this bill was filed. Non constat that they would then exercise their election, affirmatively and pay the stipulated price. But this point is not material. The doctrine invoked has no application where the rights of the vendee lie in an executory contract. It applies only where the legal title has been conveyed and the purchase-money fully paid. * The purchaser then holds adversely to all the world, and may disclaim even the title of his vendor. †

This contract calls for a quit-claim deed. The result would be the same if such a deed had been executed and full pay ment-made, without notice of the adverse claim. Such a purchaser cannot have the immunity which the principle sought to be applied gives to those entitled to its protection. * ' This-contract may, therefore, be laid out of view. It is no impediment to the assertion of the complainant’s rights, whatever they may be. It does not in any wise affect them.

The law upon the subject of the right to redeem where the mortgagor has eouveyed to the mortgagee the equity of redemption, is well settled. It is characterized by a jealous and salutary policy. Principles almost as stem 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 mortgagor it must bo shown that the conduct of the mortgagee was, in all things, fair and frank, and that he paid for the property what it was -worth. He must hold out no delusive hopes; he must exercise no undue influence; he must take no advantage of the fears or poverty of the other party. Any indirection or obliquity of conduct is fatal to his title. Every doubt will be resolved against him.. Where-confidential relations and the means of oppression exist, the scrutiny is severer than in cases of. a different - character. The form of the instruments employed is immaterial. That the mortgagor knowingly surrendered and never intended to reclaim is of no consequence. If there is viee.in the transaction the law, while it will secure to the mortgagee his debt, with interest, will compel him-to give back that which he has taken with unclean hands. Public policy; sound morals, and the protection due to those whose property is thus involved, require that such should be the law. †

The terms exacted for the loan by Rodriguez were harsh and oppressive. The condition of the widow and orphans might well have .touched his kindred heart with sympathy. It seems only to have whetted his avarice. Two per cent, a month — and this, if not. paid as stipulated, to.be compounded —was a devouring rate of interest. It was stipulated th¿t .the further advances should bear interest at the same rate. He demanded an adjustment when, from the failure of the Crops and other causes, the property was greatly depressed, and he knew the widow and her children had no means of .payment. The alternatives presented were an absolute conveyance of the property or a foreclosure and sale under the mortgage. He was anxious to procure the deed, and exulted when he got it. The debt and advances, with the interest superadded, were much less than the value of the property. The note and mortgage were executed by three of the children and the widow — the deed by the widow and five of the children. The other two children conveyed at later periods. . The consideration of the conveyance by the four children not parties to the note and mortgage was such that if an absolute title .passed, their deeds must be regarded as deeds of gift of their shares of a valuable estate. Dana, who took the acknowledgment of the deed executed by the widow and five, children, testifies that the'widow inquired whether the deed contained’ all the agreements between her and Rodríguez. Dana translated it to her. She complained that the agreements were\omitte.d. Rodriguez insisted that they were in the deed, aud added “that they ought not to distrust him, as he was taking all these steps for their interest.” The widow and children then executed the deed. Dana, speaking of a subsequent conversation with Rodriguez, on the 'same day, “ which was altogether unsolicited,” says: “ he stated to me that his object in getting the Villavicencia family to execute the deed aforesaid was to secure his money, money which he had loaned or advanced to them, and save the property for the benefit of his sister and her family, while if it remained in their hands he might lose his money, and his sister and her children would lose'the whole property. He said they had done wisely in trusting him, as he intended to deal justly by his sister.” Rodriguez was exam ined as a witness; Réferring to a period shortly preceding the execution of this deed, he says: “ Afterwards I had with them further conversation, and told them, I don’t wish to speculate upon you, because you are my relations; and.you have treated me well. If I can sell the ranch for enough to • / ® reimburse myself for my outlays as well as interest, I will return you the surplus money, if any; and, also, if I cau sell a portion of the' ranch, or enough to reimburse myself for my advance, I will do the same, and return . to you the unsold portion of the ranch, but if I have bad luck and cannot sell it, I will lose my money.” Elsewhere, in the same deposition, he says: “I stated at the ranch, and again stated to my sister'afterwai’ds, that I would return the surplus-money, but it was- no obligation of mine. It may be that I said so to Charles Dana at that time.”

He made the same admissions to other persons who are" in no wise connected with this litigation. Their testimony is found in the record. It is unnecessary to extend the limits of this opinion by accumulating and commenting upon it. The widow and five of the children^, all who have been examined, testify that they understood'the deeds to be only security for the debt. This explains the transaction as to those who were not "parties to the note and mortgage. There is no other way of accounting for their conduct. The testimony of Rodriguez alone is sufficient to turn, the scale against" him. He cannot repudiate the assurances upon which his grantors were drawn in to convey. To permit him to do so-would give triumph to iniquity. The facts indisputably established bring the case clearly within those principles by the "light of which,.in determining the rights of the parties^the judgment of this court must be made up. The complainant stands in" the place of those from wdiom he derives title. He is clothed with their rights, andis entitled to redeem six-sevenths of the premises upon paying that, proportion of the mortgage debt and interest. The former must be held to include the amount advanced, as well as that represented by the note, and the. latter be settled by the terms of the contract and the law of California. The rents, issues, and profits, and improvements made upon the premises must also be taken into the account.

The decree is reversed, and the cause will be remand'ed to the Circuit Court with directions to enter a decree and proceed

' In conformity to this opinion.

Notes

*

Nace v. Boyer, 30 Pennsylvania, 110; Boone v. Chiles, 10 Peters, 177, 211.

†

Croxail v. Shererd, 5 Wallace, 289.

*

Slay v. Le Claire, 11 Id. 232; Oliver v. Piatt, 3 Howard, 363.

†

Morris v. Nixon, 1 Howard, 118; Russell v. Southard, 12 Id. 139; Wakeman v. Hazleton, 3 Barbour’s Chancery, 148; 4, Kent’s Commentaries, 143; Holmes v. Grant, 8 Paige, 245; 3 Leading Cases in Equity, 625.