Anderson v. Colwell
| Decision Date | 09 August 1918 |
| Citation | 104 A. 242,93 Conn. 61 |
| Court | Connecticut Supreme Court |
| Parties | ANDERSON et ux. v. COLWELL. |
Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.
Action by Matthew S. Anderson and wife against Daniel Colwell to secure reconveyance of land absolutely conveyed, as made in trust. From refusal to set aside judgment of nonsuit plaintiffs appeal. Judgment set aside, and new trial ordered.
George E. Beers and Claude B. Maxfield, both of New Haven, for appellants.
Louis M. Rosenbluth and Edwin A. Clark, both of New Haven, for appellee.
The complaint sets up these facts:
Mary E Anderson was on November 1, 1913, the owner of three pieces of land, with the buildings thereon. She was in need of money with which to make repairs and to pay the sums due on incumbrances on this property. Her husband, Matthew S. Anderson, was in need of money for use in his business. Shortly after November 1, 1913, the said Mary E. Anderson transferred, by conveyance absolute in form, this property to The defendant, upon his agreement to made advances to her and her husband, the plaintiffs herein, to engage him to do certain work, to permit them to have possession of these premises, and to occupy one of the houses without paying rent until the final adjustment of the account, and to permit the plaintiffs to hold possession of all of this property until about November, 1915 or 1916. And in consideration of the agreements of The defendant, the plaintiffs agreed to hold this property, keep the charges against it maturing from time to time paid up, keep it in repair, and collect the rents, and to preserve an accurate account of all receipts anl disbursements made on account of it, and to pay rent for the house and barn occupied as a home by them at a named rent. The parties to this agreement mutually agreed that in about two or three years from November 1, 1913, they would strike a balance, and the amount due according to this balance was to be paid, and thereupon The defendant was to transfer to the plaintiff Mary E. Anderson this property transferred by her to him.
The plaintiffs are indebted to The defendant for the balance due on rent, $566; also for cash received from defendant for material and labor, $1,345.82; also for amounts paid by The defendant upon incumbrances, not to exceed $1,800-in all, $3,711.82. The defendant is indebted to the plaintiffs for work and material furnished by Matthew S. Anderson, $3,389.17; also for the amount agreed to be paid for the transfer of a mortgage on property on Peck avenue, $750; also for acquiring title to said property, $50-in all, $4,189.17. This leaves a balance due upon this account in favor of the plaintiffs of $478.35.
The plaintiffs have carried out their part of this agreement, and demanded an accounting and a reconveyance of this property, and offered to pay any balance found due. The defendant has, in violation of his agreements, brought an action of summary process to recover possession of these premises. The plaintiffs pray for a revesting of the title to these premises in them, for an accounting, and for a judgment for the amount due on the accounting. The defendant, in his answer and counterclaim, claims a balance due of $1,378.70, and prays judgment for $1,500.
Upon the trial the plaintiffs introduced in evidence the deeds affecting these transfers. These were quitclaim deeds, absolute on their face and expressed to be for a valuable consideration. Thereupon the plaintiffs inquired of the witness Matthew S. Anderson as to what was said at the oral interview, as a result of which these transfers were made. This conversation defendant objected to as an attempt (1) to establish a trust in real estate by parol; (2) to vary by parol the terms of an absolute deed, expressed to be for a valuable consideration; (3) to vary the terms of a written instrument, when there was no allegation in the complaint of fraud, accident, or mistake in its procurement, and this conversation occurred prior to its execution.
The plaintiffs claimed the evidence " to show that the transaction was really a mortgage, and not an absolute transfer." This evidence was excluded. The plaintiffs moved to amend the complaint by substituting the word " mortgage" for " trust," and " mortgagee" for " trustee," in the complaint, wherein it was alleged that the conveyance was in fact upon the trust described in the foregoing agreement. The motion was denied. Thereafter the witness Matthew S. Anderson was inquired of:
" After this conveyance was made to Mr. Colwell, did you do certain work for Mr. Colwell on his property?"
And also:
And also:
" After these transfers were made, was any money paid by Mr. Colwell on your account, or any expenses incurred for you?"
All of this evidence was excluded. These rulings are assigned as errors, and are the basis of the appeal. If they are correct, the denial of the motion to set aside the nonsuit was not erroneous.
The disallowance of the amendment was proper. The character of the transaction was determined by the allegations of the complaint, and not by the characterization of the pleader. The duty of the court was to examine these allegations, and ascertain what the transaction amounted to, and whether it described a " trust" or a " mortgage."
The court excluded this evidence upon the objections made by The defendant, and upon the further ground that, although parol evidence might have been admitted, had the mortgage been one to secure a present debt, this rule was not applicable in a case such as this was claimed to be, where the mortgage was to secure future advances. There is no difference in the rule whether the mortgage was given to secure future advances or a present debt. Matz v. Arick, 76 Conn. 388, 391, 56 A. 630; Weissman v. Volino, 84 Conn. 326, 80 A. 81. As early as French v. Burns, 35 Conn. 359, 363, we said:
" The rule that an absolute deed, if intended as a security for a debt, is to be regarded as a mortgage, is too well known to require the citation of authorities in support of it."
In Williams v. Chadwick, 74 Conn. 252, 255, 50 A. 720, 721, we said:
" But a conveyance, absolute in form, will in equity be regarded as a mortgage, when the facts show that the real...
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