Butler v. Butler
| Decision Date | 25 March 1879 |
| Citation | 1 N.W. 70,46 Wis. 430 |
| Parties | BUTLER v. BUTLER and others |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Milwaukee County.
Action to have a certain deed of conveyance, absolute on its face adjudged a mortgage, and for an accounting between the parties thereto, and for leave to redeem. The court found that the deed was not a mortgage, and rendered judgment dismissing the complaint, etc.; from which the plaintiff appealed.
Judgment affirmed.
J. F McMullen, for the appellant.
E. Mariner, for the respondent.
The learned counsel for the plaintiff below is entirely right in saying that it is the established doctrine in this state that, whatever may be the form of the conveyance made as a security for a loan of money, equity will treat it as a mortgage. Even though the conveyance be a deed absolute on its face, yet by parol evidence it may be shown to have been originally intended as a mortgage. The rule which excludes parol testimony to contradict or vary the terms of a written instrument, is held not to apply in such a case so as to prevent a court of equity from inquiring into the real nature of the transaction, and giving effect to the intention of the parties. The plaintiff seeks to take advantage of this rule of law, and have the deed which was executed to the defendant John Butler, on the 26th of May, 1857, by George C Cole, acting under the power of attorney from the plaintiff and wife, converted into a mortgage. The complaint alleges that the object of giving this deed was to secure to the defendant John Butler the repayment of such sums of money as he should thereafter loan the plaintiff; that no particular sum was agreed upon to be loaned to him by John Butler; but that the latter was to loan him, on interest at 7 per cent., such sums as he might from time to time require, not exceeding the sum of $ 35,000, the consideration named in the deed. It is alleged that no money was loaned at the time the agreement was entered into, but that, in pursuance thereof, money was subsequently advanced. This is the substance of the contract, as stated in the complaint. The circuit court found, as matter of fact, that that deed was not executed upon any agreement of the defendant John Butler to loan money to the plaintiff, nor as security for money theretofore loaned, but was an absolute deed, unaffected by any other agreement than such as it contains. We are inclined to think that this finding is in accord with the proof in the case. Certainly there is no such preponderance of testimony in support of the inference that the deed was originally intended as a mortgage, as would warrant this court in setting it aside. The real object or purpose of making this conveyance is not satisfactorily disclosed in the evidence. The more probable supposition would seem to be, that the deed was given in pursuance of some secret trust or understanding between the plaintiff and his brother John. The account which the plaintiff gives of the transaction is, in substance, that he was in poor circumstances; found it difficult to support his large family from his farm alone; was pressed by a mortgage for $ 500 running to one Robinson, the interest on which was about to become due, and went to his brother for assistance; and that, as the result of their talk or negotiation, John agreed to assist him to money from time to time as he might need, and take the land as security. But it does not appear, even from the plaintiff's own version of the matter, that John agreed to loan, or that he agreed to borrow, any particular sum, and pay interest upon it. The amount of the loan, the rate of interest, the time when the money was to be repaid and a reconveyance made, are all left in doubt and...
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