Brant v. Robertson

• Decision Date: 31 March 1852
• Parties: BRANT, Plaintiff in Error, v. ROBERTSON, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 129

BRANT, Plaintiff in Error,

v.ROBERTSON, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

1. Under the new Code, where a case has been tried by the court below, without a jury, and the finding of facts is incomplete on its face, the case will be reversed.

2. No conveyance can be a mortgage, unless it is made to secure the payment of a debt, or the performance of a duty, either existing at the time the conveyance is made, or to be created or to arise in the future.

3. To determine whether a transaction was a conditional sale or a mortgage, courts will look not only to the deeds and writings, but to all the circumstances of the contract, to ascertain the real intention of the parties. If the intention is doubtful, it will be held as mortgage, as this construction is more just and equitable.

4. Under the 5th clause of the 14th section, of the act concerning executions (R. S. 1845), where A. has agreed to convey land to B., and B. has agreed to pay for it, or has paid for it in whole or in part, B. has such an interest in the land as may be sold on execution.

Aliter, If B. has paid no money, and is under no obligation to pay.

Error to St. Louis Circuit Court.

The opinion of the court contains a sufficient statement of the facts.

T. T. Gantt, for plaintiff in error.

I. Robertson, at the time of the sale by the sheriff, being in possession of the premises under a contract of sale, had a legal interest therein, saleable on execution. Rev. Code of 1845, sections 2 and 66 of ch. 61, pp. 475, 488. Benton v. Mullanphy's Ex'r, 8 Mo. R. 650.

Such an interest is saleable on execution, even in those states in which a merely equitable estate cannot be sold by the sheriff. Jackson v. Parker, 9 Com. 73; Jackson v. Scott, 18 Johns. 94. A mere equitable estate not being at that time saleable on execution in New York. 5 Cow. 485, Jackson v. Chapin.

II. This possession of the defendant in error thus being a legal estate, all equitable interests belonging to him, or accruing to him from any source, were united to and merged in it; and all his estate, legal and equitable, passed by the sheriff's deed. Goodright v. Wells, Douglas' Reports, 741; Rev. Code of 1845, pp. 475, 488; 8 Mo. Rep. 650; Burton on Real Property, 426.

III. Under our laws, all interest and title in and to real estate is saleable on execution. The second section of an act concerning executions, approved February 1, 1839 (September acts of 1839, p. 43), defines “real estate” to signify “all interest of the defendant, or any one to his use, held or claimed by virtue of any deed, bond, covenant or other writing, for a conveyance, or as a mortgagor or mortgagee in fee, for life or years.”

The act of 1845 says more concisely, but not less comprehensively, that the term “real estate” shall be construed to include “all interest and estate in lands, tenements and hereditaments.” Rev. Code, section 66, page 488, chap. 61. The words “estate and interest,” and still more, “ all estate and interest,” are the most comprehensive known to the law. (1. Inst. 345; A. 6 Cru. Digest, 230, sec. 24.) If Robertson, then, had any interest or estate in the land, under the contract, legal or equitable, it passed by the sheriff's deed to Brant; and so passing, it operated as a release of the covenant, or a discharge of it. 1 Cruise's Digest, 457; Goodright v. Shales, 2 Wilson's Rep. 329; Burton on Real Property, 426.

IV. Robertson had an equitable interest and estate in the land, by virtue of the contract of conditional sale. 2 Story's Equity, 23; Atkinson on Titles, 32-33; Burton on Real Property, 487-488.

Even before election made by the covenantee to complete a contract of purchase, which he alone can enforce, the interest which he has by virtue of the contract is treated in equity as “real estate.” Atkinson on Titles, p. 41-42; 14 Ves. 590, Townley v. Bidwell. But as before stated it must, if it be real estate in this sense, have passed by the deed of the sheriff to Brant. 8 Mo. Rep. McNair v. O'Fallon, 188; 8 Mo. Rep. Benton v. Mullanphy's Exr. 651; Rev. Code of 1845, p. 488.

V. It was said, in the argument of the question before the Circuit Court, that until election made and tender of the price, Robertson's interest in the land was a mere chose in action, So in one sense is the right of action for covenant broken, even when the covenant will be specifically performed by a court of equity. If the covenantee goes to a court of law, nothing but his right to damages is recognized. Thus his rights there are a mere “chose in action.” But if he resorts to a court of equity for specific performance, that court recognizes his equitable title to the thing contracted for, and compels the covenantor to convey to him the legal title also. Atkinson on Titles, p. 33 and following; 2 Story on Equity, p. 23 and following.

F. M. Haight, for same.

The advance of money by Brant to Ford, and the conveyance by Robertson to Brant, and the defeasance executed by Brant, created a mortgage. The principle is undoubted, that wherever the real object of the transaction is security for money to be returned or paid, a mortgage is created, no matter what may be the form of the papers, or with what words the parties may seek to disguise the transaction.

Courts of equity lean against construing instruments to be conditional sales, and the burden of proof is on the grantors to show that a conveyance is so. If it be doubtful, it is held to be a mortgage. Flagg v. Mann, 2 Sumner, 486; Desloge & Rozier v. Ranger, 1 Mo. Rep. 327; Crane v. Bonnell, 1 Green Ch. R. 264; Robertson v. Campbell, 2 Call. 421; 3 Green Ch. R, 370; King v. Newman, 2 Munf. 4; French v. Dyon, 2 Root, 69.

In the following cases it has been held that where there is an absolute conveyance and an agreement to re-convey, on payment of the purchase money, the transaction was a mortgage. 17 Ohio, 256; 6 Barr (Pa.), 390; 18 Pick. 299; 1 Met. 117-119; 6 Dana, 473; 15 Johns. 205.

An absolute deed, with a separate defeasance, constitutes a mortgage. 7 Watts and Serg. 335; 10 Ohio, 433.

And this though the parties had no intention of making a mortgage. Colwell v. Woods, 3 Watts, 188; 4 Pick. 349; 2 Mass. 493.

Cites further, Johnston v. Gray, 16 Serg. and Rawle, 361; 5 Binney, 499; 3 J. J. Marsh. 353; 3 Blackf. 51; Hammond v. Hopkins, 3 Yerg. 525; 4 Munf. 140; Wells v. Brockway, 1 Paige C. R. 617; 19 Conn. 29.

It is said there are certain indications or ear-marks which distinguish a conditional sale from a mortgage, and in this case the indicia of a mortgage are wanting.

The cases cited show that there are no necessary or indispensable circumstances by which the nature of the transaction is invariably held to be one or the other. It is a question of intention, and each case must depend on its own peculiar circumstances. In this case, the circumstances furnish evidence of the intention to create a mortgage.

In any view of the case, Robertson had an interest in the land which was saleable under execution. He was in possession under a lease and holding a contract for the purchase. His possession was as tenant and also as owner. Cites: 3 Johns. Ch. Rep. 312; 6 Id. 398.

Todd & Krum, for defendant in error.

The case is not properly saved for review in this court.

The transaction between the parties, in respect to the premises in question, was a conditional sale, and the plaintiff having tendered the amount of money specified in the covenant, is entitled to a decree for a specific performance.

This case comes clearly within the principle stated in 2 Edwards' Ch. Rep. 138, because,

1. The covenant itself contains nothing to make the transaction a mortgage.

2. The price was fixed.

3. No disparity was shown between the money advanced by Brant and the value of the premises.

4. The relation of debtor and creditor between Robertson and Brant was not shown.

5. Brown's acts, such as making leases, receiving rents, etc., show that he regarded the transaction as a sale and not a mortgage.

Cite further to same point: 7 Cranch, 218; 14 Pick. 467; 2 Yerg. 6; 1 Pow. on Mortg. 137; 7 Mo. 327; 1 Wash. Rep. 125.

The sale under the execution, and the sheriff's deed to Brant, did not defeat Robertson's right to pay or tender the money and claim a deed from Brant under his covenant. His interest under the covenant was not saleable on execution, either at common law or by the statute of this state.

It is a well settled principle of the common law that no property, but that to which the debtor has a legal title, is liable to be taken on execution. 8 East. 467; 6 Barb. Rep. 116; 1 Johns. Ch. Rep. 52; 17 J. R. 354; 5 Bos. and Pul. 461; 1 Vesey, Jr., 431; 13 Pet. 294, 301.

It is equally well settled that a chose in action cannot be levied on under a writ of fieri facias, and Robertson's interest under the agreement is a pure chose in action. 13 Pet. 294.

The 5th subdivision of section 14 of the act to regulate executions, p. 478, Rev. Stat. 1845, does not comprehend within its provision such a right or interest as Robertson had, under the covenant in question, at the time of the execution sale, because,

1. Brant was not seized of the premises in question to the use of Robertson, for the latter had not as yet paid anything.

2. Robertson was in possession under a lease from Brant, and not under the covenant.

Statutes containing similar provisions have been adopted in several of the states, and the courts have given them judicial construction. 13 Peters, 294; 5 S. and M. 130; 7 S. and M. 111, 630, 651; 1 Verm. 411; 1 Conn. 226; Sug. on Ven. 337.

The statute of Missouri does not change the common law in respect to the sale of a chose in action under a fi. fa., and Robertson's interest under the covenant was a mere chose in action. Our statute was designed to subject to sale on execution the real estate or hereditaments of a person having the entire interest therein, but which was nominally vested in another. Brant was not seized of the premises in question to the use of,...