Brightwell v. McAfee

• Decision Date: 08 April 1913
• Citation: Brightwell v. McAfee, 249 Mo. 562, 155 S.W. 820 (Mo. 1913)
• Parties: RICHARD T. BRIGHTWELL et al. v. HOWARD B. McAFEE, Appellant
• Court: Missouri Supreme Court

155 S.W. 820

249 Mo. 562

RICHARD T. BRIGHTWELL et al. v. HOWARD B. McAFEE, Appellant

Supreme Court of Missouri, Second Division

April 8, 1913

Appeal from Platte Circuit Court.-- Hon. Alonzo D. Burnes, Judge.

Affirmed.

John T McRuer and George W. Day for appellant.

(1) The amended petition in this case is fatally defective.If it is designed to state a conveyance in trust, it fails to state that the trust was manifested by some writing, and if it is designed to state that the conveyance was intended to be an equitable mortgage, it fails to state facts showing that the relation of debtor and creditor existed between the parties or that such relation was subsequently to arise -- mere conclusions not being sufficient.R.S. 1899, sec. 3416;R.S 1909, sec. 2868;Cornelius v. Smith,55 Mo. 533;Heil v. Heil,184 Mo. 673;Crowley v. Crofton,193 Mo. 421;Jones v. Hubbard,193 Mo. 147.(2) The evidence was insufficient to establish that either of the quit-claim deeds was a mortgage.Such evidence must be clear, unequivocal, and convincing, leaving no reasonable doubt in the mind of the chancellor.Quick v. Turner,26 Mo.App. 29;Bobb v. Wolff,148 Mo. 344;Gerhardt v. Tucker,187 Mo. 46.(3) The lease and option-to-purchase contract pleaded in the answer of defendant McAfee fixed and determined the rights of the parties.Duell v. Leslie,207 Mo. 658;Jones v. Hubbard,193 Mo. 147;Bailey v. Trust Co.,188 Mo. 492;Forrister v. Moore,77 Mo. 651;Turner v. Kerr,44 Mo. 429;Slowey v. McMurray,27 Mo. 113;White v. Land Co.,49 Mo.App. 450;King v. Groves, 42 Mo.App. 168.

Norton B. Anderson, Andrew D. Gresham and John W. Coots for respondents.

(1) In order to ascertain whether the two quit-claim deeds of the Brightwells to appellants of April 10 and July 28, 1897, constituting one and the same transaction, were intended by the parties at the time as an equitable mortgage, courts of equity will consider: 1, The continued occupancy of the property by the mortgagor; 2, Inadequacy of price; 3, Continued holding of the evidences of debt paid off by appellant; 4, The continuance of a debt from the Brightwells to appellant; 5, The application of respondents to appellant for a loan at the first.All this indicated that the quit-claim deeds were intended by the parties to be a mortgage, or in the nature of a mortgage.Bobb v. Wolf,148 Mo. 344;Book v. Beaseley,138 Mo. 461;Cobb v. Day,106 Mo. 295.Ignorance, weakness of mind, old age, incapacity, pecuniary necessity and the like on the part of the other, these circumstances combined with inadequacy of price, may easily induce a court to grant relief, defensive or affirmative.Cobb v. Day,106 Mo. 301.And while it may be held that the burden of proof is on him who asserts that a deed absolute on its face is a mortgage, yet this is different where the transaction had its inception in an application for a loan.Cobb v. Day,106 Mo. 278;Book v. Beaseley,138 Mo. 455.On a denial of the trust character of the conveyance, by the grantee, equity will treat his denial as a fraud, and hold him as firmly to the verbal defeasance, as though it had been a formal written one.Chance v. Jennings,159 Mo. 544.(2) The right of the Brightwells to redeem could not be defeated by the pretended lease signed by them in March, 1898, and never signed by appellant.It is axiomatic, that once a mortgage, always a mortgage and all doubts must be resolved in favor of its being a mortgage.Reiley v. Cullen,159 Mo. 331;Bender v. Marle,37 Mo.App. 246.The right of the mortgagor is never extinguished until a regular foreclosure and sale.And this is the law no matter if the parties both intended otherwise.It is a condition that arises not by contract but by operation of law, and often in spite of contract.Lipscomb v. Talbott,243 Mo. 1;Riley v. Cullen,159 Mo. 331;Wilson v. Drumrite,21 Mo. 325;White v. Land Co.,49 Mo.App. 464;Reiley v. Cullen,159 Mo. 332;Chance v. Jennings,159 Mo. 554;Brant v. Robertson,16 Mo. 129.(3)Appellant's counsel seem to contend that on April 10, 1897, the date of the execution of the quit-claim deed to appellant by the Brightwells, as there was then no existing debt from them to the appellant, this deed absolute on its face, could not be considered a mortgage.Counsel seem to lose sight of the fact that, within three days after the execution of this deed to appellant, viz., on April 13, 1897, appellant entered into a redemption bond as security with the Brightwells as principal, for the redemption of the property from the Hamilton deed of trust, and on the 28th day of July, 1897, advanced the sum of $ 667.30 of his own funds for the extinguishment of that debt."It may be taken as universally true in law, that no conveyance can be a mortgage, unless it is made for the purpose of securing 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.Brant v. Robertson, 16 Mo. 143.

WALKER, J. Brown, P. J., and Faris, J., concur.

OPINION

WALKER, J.

This is a suit in equity to divest the title to certain lands in Platte county out of defendant, and vest it in plaintiff.

The prayer is for an accounting and that the deeds transferring the land be declared to be mortgages, and for other proper relief.From a judgment for plaintiffs, defendant appeals.

The suit was originally brought by Richard T. Brightwell and Sallie L. Brightwell, his wife, as plaintiffs, against Howard B. McAfee, as defendant.Sallie L. Brightwell subsequently died, and a revivor was had in the names of the present plaintiffs; two of the heirs of the deceased, declining to consent to be joined as plaintiffs, were made defendants.

In 1891Sallie L. Brightwell and Richard T. Brightwell, her husband, executed a deed of trust to secure a note made to A. J. Hamilton for $ 1513.Hamilton thereafter died, and his administrator caused the trustee named in the deed of trust to advertise the land for sale, and on April 10, 1897, it was sold and bought in by the administrator.A few days after the sale, the Brightwells, with McAfee, the defendant, and others as sureties, gave a redemption bond, which was filed and approved in the circuit court of Platte county.

Prior thereto an arrangement had been entered into by the Brightwells and McAfee, under which the former were to deed all the property covered by the Hamilton deed of trust to McAfee; on the day of the sale of the land under the deed of trust, the Brightwells made a quit-claim deed to McAfee for a purported consideration of five dollars, of all the land described in the Hamilton deed of trust, absolute in form, but contended by the plaintiffs to be by way of security to McAfee for the repayment of the money he proposed to obtain and advance for them to redeem the property from the said deed of trust; to accomplish this, he was to sell such portions of the land as would be necessary to raise money to pay off the Hamilton debt and expenses, etc., incident thereto, after which the remaining portions of the land not sold, were to be reconveyed to Mrs. Brightwell.This deed was not recorded.On July 28, 1897, the Brightwells executed another deed to the same land to McAfee for the purported consideration of one dollar, the purpose only, admitted in appellant's answer, being to correct an error or defect in the description of the land contained in the deed first mentioned.The last deed was filed and recorded.On the same day the last mentioned quit-claim deed was executed to McAfee, he sold twenty-five acres of the land to Jane Ferril for $ 1200 and received the money therefor, and executed a deed of trust to M. Noll, Jr., on the home place of the Brightwells to secure a note for $ 800; and paid to the administrator of Hamilton $ 2067.37 in full of the debt and interest which had been secured by the deed of trust aforesaid, and received a full release by a quit-claim deed made to him, said McAfee.In the payment of this debt, McAfee used the $ 1200 he had received from Mrs. Ferril, the $ 800 he had realized from Noll, Jr., and advanced $ 667.30 out of his own funds.From November 1, 1897, to October 16, 1900, McAfee sold twenty acres of the Brightwell land to the Southwest Loan & Land Company for $ 700, a lot to S. S. Aker for $ 225, and other portions of said land to Nancy A. Tabler for $ 425; in addition to these sums received by him, the Brightwells paid him in cash at different times, up to June 11, 1906, the aggregate sum of $ 993.74.On April 15, 1898, McAfee paid off the Noll deed of trust and received a full release of the same.The total amount of money received by McAfee from the sale of the portions of the land, with the additional sum paid to him by the Brightwells in cash, is $ 3483.74.The total amount expended by him for all purposes was about $ 2567.30.According to the undisputed evidence, therefore, a cash balance, $ 816.44, remained in McAfee's hands to cover any possible interest, insurance, taxes, repairs and other expenses incurred on account of said land.During the entire time of these transactions the Brightwells remained as they had been long before, and as Richard T. Brightwell and the administrator of Sallie L. Brightwell were at the time of this suit, in absolute possession of the portion of the lands not sold.At the time of the foreclosure under the Hamilton deed of trust these lands were worth from $ 6000 to $ 8000, and at the time of the trial the remainder of the lands not sold was worth from $ 4000 to $ 5000.

Such portions of the petition filed herein as are necessary to a review of defendant's objections thereto, are as follows:

"And plaintiffs state that the said Sallie L. Brightwell being so the absolute owner of said...