Benjamin Culp v. Wooten & Agee

• Decision Date: 06 January 1902
• Citation: 31 So. 1,79 Miss. 503
• Parties: BENJAMIN CULP v. WOOTEN & AGEE
• Court: Mississippi Supreme Court

31 So. 1

79 Miss. 503

BENJAMIN CULP v. WOOTEN & AGEE

Supreme Court of Mississippi

January 6, 1902

October 1901

FROM the circuit court of, first district, Coahoma county. HON FRANK E. LARKIN, Judge.

Wooten & Agee, appellees, were plaintiffs in the court below; Culp appellant, was defendant there. The facts are fully stated in the opinion of the court.

Reversed and Remanded.

Fitzgerald & Maynard, for appellant.

The right of possession to the land in controversy is the only question involved in this case.

A mortgagor is entitled to possession of lands conveyed thereunder, until default is made in the payment of the debt secured, and demand made by the mortgagee for the purposes of a sale.

A conveyance or other writing absolute on its face, where the maker does not part with the possession of the property conveyed by it, can be shown by parol evidence to be only a mortgage. Code 1892, § 4233.

This has been so held by our courts and is no longer an open question. If it is the intention of the parties that the deed should have the effect of a security for a debt, the maker remaining in possession of the property, the courts will give that effect to the instrument. Fultz v. Peterson, 78 Miss. 128.

Some of the tests of a mortgage which are almost conclusive are the following: 1. That there was a borrowing and lending and an obligation to repay incurred. 2. That the relation of creditor and debtor existed before the conveyance and continued. 3. That there was a great disparity as to the price.

Our courts will permit parol evidence to show the intention of the parties, and it will be permitted to penetrate all subterfuges, cloaks and disguises surrounding the transaction, and disclose all fraud or inequitable conduct of either party thereto.

A conveyance or other writing absolute on its face, where the maker parts with possession of the property conveyed by it, can be shown by parol evidence to be a mortgage only where fraud appears in its procurement. Code 1892, § 4233.

Where a debtor executes a conveyance of land to his creditor absolute on its face, with a verbal agreement for a reconveyance upon payment of the debt, our courts will treat the deed as a mortgage. This proposition of law requires no argument, nor citation of authority. Our court, as well as the supreme court of the United States, are committed to it, and it is sound law. Grocery Co. v. Leach, 71 Miss. 959.

If a debtor executes to his creditors a deed absolute on its face, with the intention and understanding on his part that the same shall operate only as a mortgage to secure the balance of his debt not then ascertained, because of certain payments to be made thereon from sales of personal property to be delivered to his creditors, then the courts will hold and construe such instrument to be only a mortgage, although it may appear that the creditor intended it to be an absolute deed of conveyance, provided the conduct of the creditor was inequitable, or provided the creditor knew at the time of the conveyance or ought to have known from the situation the conduct and conversation of his debtor that his intention was to execute an instrument to operate as a security for his debt, or where it appears that there was some relation of trust and confidence between the parties that has been abused, or where there was fraud on the part of the creditor, accompanied by a mistake on the part of the debtor, or where some undue advantage was taken of the debtor.

It is not competent to contradict or vary by parol the words of a written contract, unless the language used is susceptible of different meanings, and, when so susceptible, it is always competent to inquire what the parties understood it to mean, and to show the relation of the parties to each other, the subject of the contract, the conversation of the parties leading up to the contract, and all the surrounding circumstances so as to ascertain the intent. Gillenwaters v. Miller, 49 Miss. 150.

In construing a written instrument to determine whether it is a deed or a mortgage, the courts lean in favor of a mortgage in case of any doubt.

We claim in this case that it is a fraud, under all the circumstances of the execution of the deed by appellant, for appellees to insist that they did not intend for the instrument to be a mortgage. They are estopped from denying that.

Rucks Yerger, for appellee.

The defendant having given an absolute deed to the property, if he parted with the possession his rights terminated, except in case of fraud. Code 1892, § 4233. Was possession parted with, is the only question on this branch of the case.

There is practically no conflict in the testimony on this point. The evidence shows clearly that defendant Culp, at the time he made the deed, and for a year or two preceding, lived on the "Island Place," not the land in controversy. That his sons lived on the land in controversy at the time the deed was made, working same on "shares" with their father, and making contracts with merchants for supplies.

What is the attitude of the parties if the defendant did not part with the possession? The appellees contend that even in this view of the case the judgment of the lower court was correct and should be affirmed.

The instructions fairly present to the jury all the questions in the case and their verdict is supported by the testimony. The sole question in this case considered in this light was whether the absolute deed made by the appellant Culp was intended by both parties, not by Culp alone, but also by Wooten & Agee, to be a security.

OPINION

CALHOON, J.

Wooten & Agee brought their action of unlawful entry and detainer against Culp for the possession of certain land, lost their case before the court of the justice of the peace, appealed to the circuit court, won there, and Culp...