Holmes v. Fresh

Citation9 Mo. 201
PartiesHOLMES v. FRESH.
Decision Date31 January 1845
CourtUnited States State Supreme Court of Missouri

APPEAL FROM MARION CIRCUIT COURT.

LEONARD & BAY, for Appellant. 1. The answer denies that the transaction was a loan of money, and security for its payment, and the proof is not sufficient to establish the fact against the denial of the answer and the deed of the defendant. Thompson v. Patton, 5 Littell's R. 74; Clason v. Morris, 10 Johns. R. 541; Flint v. Sheldon, 14 Mass. R. 445; Stackpole v. Arnold, 11 Mass. R. 27; Aborn v. Burnett, 2 Blackford's R. 102; 1 Phillips' Ev. 567-571.2. The bill does not seek to set aside the bill of sale upon the ground of fraud and oppression in procuring it, and therefore under the pleadings, the complainant cannot have relief upon that ground. Story's Eq. Pl. §§ 257, 264. 3. If the pleadings were otherwise, mere inadequacy of consideration is no ground of equity for canceling the bill of sale, and the other circumstances in the transaction established by the proof do not make out a case for the cancellation of the deed. 1 Story's Eq. §§ 144-5; 1 Sugden on Vendors, 316, 327; Low v. Barchard, 3 Vesey, 133; Western v. Russell, 3 Vesey & Beame, 187; Coles v. Trecothich, 9 Vesey, jr., 234; Osgood v. Franklin, 2 Johns. Ch. R. 23; 1 Dess. 250, 260; Seymour v. Delancy, 3 Cowen's R. 446; Seymour v. Delancy, 6 Johns. Ch. R. 222. 4. If the bill of sale is to be considered as a mortgage to secure money loaned, the complainant is only chargeable with the hire actually received by him for the time the slaves were hired out to others, and with a reasonable hire, while they were in his service; and the account settled upon this principle, will exhibit a small balance against Fresh, instead of the balance of $367 in his favor allowed him by the decree. Head v. Overton, 1 J. J. Marshall, 559.

S. T. GLOVER, for Appellee. The appellee, by his counsel, insists that the bill of sale under the evidence contained in the record, must be regarded in equity, only as a mortgage, and in support of this proposition, he makes the following points: 1. A bill of sale absolute on its face, may, nevertheless, be proved by parol evidence to have been intended as a mortgage. See Tucker's Com. part 2nd, 103; 4 Johns. Ch. R. 167; 1 Day's R. 133; 1 Paige, 48 and 202; 2 Caine's Cases, 124; 2 Cowen. 324, 246; 15 Johns 555; 1 Wendell, 433; 6 Johns. Ch. R. 417. 2. The testimony of Anderson ought to be regarded as being as conclusive upon the question of the character of the instrument, as the testimony of any one witness can be against the answer of the defendant in chancery. 3. That Fresh did not wish to sell his negroes, and when advised by Anderson to do so, refused, but offered to put them in pledge--that they were worth $600 or $700 each; that they could have been sold to negro buyers on the spot, and at the time of the alleged sale, at that price. The declaration of Anderson to Fresh, that any arrangement by which $600 could be secured to him in four or five weeks, would do; the willingness of Anderson to make an arrangement to save all parties--the enormous disparity between the sum alleged to have been given, and the value of the property--the fact that Holmes was deeply interested to save the land from sale; that he had no money to buy the land with, if it was sold; that he had no money to pay down for the negroes, and could not raise money save by mortgaging the negroes to pay Anderson; the fact that Holmes, though he affected great un willinguess at first, eventually tells Anderson if he could be secured and had the money, he would advance it, taken into connection with Anderson's subsequent agreement to wait four or five weeks, are circumstances all going to corroborate the statements of Anderson, and in my opinion amply sufficient to overturn the most positive answer. That such circumstances are entitled to great weight, may be seen from the following adjudged cases: In 5 Binney, 499, property worth $800 was sold for $200, with a defeasanee to recovery, if paid in three months; Scrivener considered the instrument a mortgage, and it was so held; 3 Dana, 175; 3 Dana, 253; 7 Johns. Ch. R. 43; 2 Am. Digest, p. 186, No. 15, citing Stuart & Potter, 67; 1 Porter's R. 355; 9 Dana, 120; 3 Iredell's R. 94; 2 Am. Dig. 238, No. 7. citing 3 Yeager, 513; see also, 2 Call, 421; 2 J. J. Marshall, 115, 471; 4 Hen. and Mun. 101. 4. The grounds assumed by Mr. Holmes, that Fresh was in such distress, and under such strenuous necessity, that he was forced to sell to him at $600, is iniquitous, and cannot be used by him to repel the presumptions, otherwise arising in favor of Fresh, upon the evidence. 2 Atkins, 330; 2 Tuck. 427; 2 Leigh, 150; 2 Cowen, 170; 14 Vesey, 214. 5. If, from all the evidence adduced, the court has doubts as to whether the instrument was intended as a mortgage or sale, the rule of equity is, to incline in favor of the mortgage. 2 J. J. Marshall, 471; 3 Dana, 253; 3 J. J. Marshall, 354-5-6; 5 Littell, 86, 6. It was proper for the court to take an account of the hire of the negroes up to the date of the decree. 1 Paine's R. 202; 2 B. Monroe, 61.

SCOTT, J.

This was a bill in chancery brought by Fresh against Holmes and others, in which it is alleged that Holmes became an indorser in bank for Fresh for the sum of $1000. Holmes was secured against all liability by reason of his indorsement, by a deed of trust on all the complainant's land in Lewis county. Afterwards, in March, 1840, Fresh being pressed with executions, issued on judgments whose liens were anterior to the deed of tst, which had been levied on the lands conveyed by the trust deed, solicited from Holmes a loan of a sum of money sufficient to satisfy the executions. The solicitation was made in less than an hour before the time appointed for the sale. Holmes declined making the loan, saying he had not the money. At this time Thomas L. Anderson, attorney for the creditors in the executions, infiuenced as well by a desire to save him from entire ruin, as complainant supposed, as to preserve Holmes' lien on the land about to be sold, interfered and offered to Holmes that he would direct the return of the executions if he would advance the sum of $600. Holmes declared his inability to raise that sum immediately, but thought he could do so in four or six weeks, if he could be so long indulged, and undertook so to do if Fresh would give him security for its repayment by a lien on three negro men belonging to him. Fresh accepted this proposition, believing it to be beneficial both to himself and Holmes, and Anderson, their attorney, was directed to prepare an instrument witnessing the agreement, which should attach a lien on the negroes mentioned, in favor of Holmes, so soon as he should pay the money. Anderson inquired of Holmes what sort of an instrument he would have; Holmes replied he would rather have a bill of sale, as he thought there would be less difficulty about it than any other sort of instrument. Anderson informed Fresh that the form of the instrument was a matter of no importance, that the intention of the parties would determine its effect, and although it was absolute on its face, yet it could be shown to be a mortgage, or security. With this understanding, Fresh avers he executed the bill of sale, supposing that Holmes, so soon as his money, with interest, should be paid, would release all claim to the slaves, and insists that the instrument of conveyance was designed by the parties thereto as nothing else than a security for the payment of money; that it was so understood by the parties at the time of its execution, and it was repeatedly so declared at that time. Immediately after this transaction, Holmes asserted in conversation, that he had purchased the slaves absolutely for $600. That he had obtained an advantage over Fresh, in consequence of his embarrassment. That his motive is so doing was to compel Fresh to settle with him usurious interest amounting to $600 or $700, which he had exacted from him on a loan of $400, at the rate of 20, 25, 30 and 35 per cent. The bill charges that the three slaves were worth $2500 at the time of the mortgage, and are now worth that sum, or nearly so, and that at any time, and at any state of the market, more than $200 apiece could have been obtained for the slaves. In April, 1840, before the $600, or any part thereof was paid by Holmes, he instituted an action of replevin against Fresh for the slaves, with a view to harass and oppress him, and to constrain the payment of the usurious interest abovementioned. The slaves were replevied, and ever since have been in the possession of Holmes, or of persons claiming under him. Holmes recovered judgment in the action of replevin. The negroes, it is stated, were worth one hundred and twenty-five dollars apiece annually, and have satisfied the debt by their hires. The bill prays for general relief, and a refunding of the costs in the action of replevin.

There was a demurrer to this bill, which was overruled, and thereupon the defendant, Holmes, filed an answer, in which he admitted the facts stated in the bill relative to his liability for Fresh as indorser in bank. G. W. Hawkins was a co-security, and equally secured by the trust in the property conveyed. A saw-mill was on the land conveyed by the deed of trust, and the trust property was worth at least three thousand dollars. The truth of the allegations of the bill respecting the incumbances on the property by prior judgments is admitted, as is the fact of the same being levied on and about to be sold. Holmes denies that Fresh ever proposed to him to advance any money to relieve the land secured by the deed of trust, but admits that T. L. Anderson, the attorney for the creditors in the executions, expressed to him a desire that he would aid his (Holmes) old friend, by satisfying the executions under which his property was about to be sold. Holmes replied that he had no inclination to assist Fresh; that but a few days since they...

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