Fridley v. Somerville
| Decision Date | 13 June 1906 |
| Citation | 54 S.E. 502,60 W.Va. 272 |
| Parties | FRIDLEY v. SOMERVILLE. |
| Court | West Virginia Supreme Court |
Submitted March 13, 1906.
Syllabus by the Court.
The burden of proving that a deed absolute on its face is a mortgage securing a loan is on the party alleging it. The intention of the parties to the deed at the time it was made is controlling. If, after the deed was made, and the transaction completed, there existed no indebtedness from the grantor to the grantee on account of the consideration for the deed, it is not a mortgage.
In a suit to have a deed absolute on its face declared to be a mortgage, the presence of what are termed the "indicia of a mortgage," arising from the circumstances attending the transaction, does not prevent the consideration of other evidence, both direct and circumstantial, bearing upon the question of the intent of the parties at the time the deed was made, and such other evidence may be of such character, and so potent and convincing, as to overcome the weight to be given to any or all of the indicia of a mortgage.
It is for the court to determine, from all the competent evidence in the case, both direct and circumstantial, including any of the indicia of a mortgage present, whether or not the deed in question was intended by the parties, at the time it was made, to be a mortgage or an absolute conveyance.
Appeal from Circuit Court, Mason County.
Bill by Charles L. Fridley against E. J. Somerville. Decree for plaintiff. Defendant appeals. Reversed.
Rankin Wiley and C. E. Hogg, for appellant.
Beller & Blagg, for appellee.
E. J Somerville complains of a final decree entered by the circuit court of Mason county, in a chancery cause in which he is defendant and Charles L. Fridley is plaintiff. By the decree complained of, a deed absolute on its face, made by Fridley to Somerville, purporting to convey 66 1/4 acres of land in said county, was declared to be a mortgage securing to Somerville the sum of $150, with interest from the 13th day of December, 1904, and the further sum of $13.12, the amount of taxes paid on the land by Somerville. The sole object of the suit on the part of Fridley was to have the deed declared to be a mortgage instead of an absolute conveyance. The question for determination is whether or not, upon the whole evidence, the action of the court in declaring the deed in controversy to be a mortgage was erroneous. This deed absolute on its face, was executed, acknowledged, delivered and recorded on the 13th of December, 1904. It acknowledged the receipt of $225, the consideration named therein. The plaintiff by his bill, in substance, alleges that, at the time he executed and delivered the deed, and for some time thereafter, he supposed that it was a deed of trust securing a loan of $150; that the deed was not read to or by him before signing and delivery; that, from the declarations and representations of the defendant, he believed it to be a deed of trust; that the defendant fraudulently represented the deed to be a deed of trust; that plaintiff is a man of no education, while the defendant is an educated man and an attorney at law by profession; that no sale of said land was ever in fact made by plaintiff to defendant; that as soon as plaintiff learned that said deed was not a deed of trust securing a loan, he offered to repay to defendant the $150 received from him at the time the deed was made; that plaintiff demanded a reconveyance of the land in fee, and by his bill offers to repay the $150 and interest. The defendant by answer denies all the material allegations of the bill against him, including the allegation that the deed was intended to be a mortgage or was misrepresented.
The value of the tract of land in fee and unincumbered, at the time the deed was made, is variously estimated by the witnesses. We think from the evidence that $10 per acre may be said to have then been the fair value of the land. The plaintiff's wife, whose age does not appear from the record, did not join in the deed. At the time the deed was executed, and as a part of the transaction, the defendant executed and delivered to the plaintiff a writing, as follows: Lillie Gardner, therein mentioned, was the married daughter of the plaintiff, and this writing was afterwards delivered to her. At the time the deed was made, the plaintiff executed a bill of sale of his personal property on said land, including live stock and farm implements, to Lillie Gardner, who afterwards sold said personal property at public auction. Some time after the execution of the writing to Lillie Gardner above mentioned, which writing will hereafter be called an ""option," the defendant procured from her a release, as follows:
After considering all the evidence, facts, and circumstances shown by this record, we are clearly of the opinion that the deed in question, and the option to Lillie Gardner, state truly the transaction between the plaintiff and the defendant, except as to the money consideration for the deed. The money consideration, according to the evidence, was $150 paid to plaintiff, $13.12 to be paid on taxes then accrued against the land, and $10 attorney's fees to be paid to Duffy, plaintiff's attorney in this transaction. It seems to us that the evidence overwhelmingly sustains the theory that the intent was to make an absolute conveyance of the land, subject alone to the right of Lillie Gardner to purchase at the price of $225 within four months under the option. The evidence is voluminous. To detail it in extenso would require much space and would answer no useful purpose. Parol evidence, to prove a conveyance absolute on its face to be a mortgage, must be clear and unquestionable. Way v. Mayhugh, 57 W.Va. 175, 50 S.E. 724. A decree determining a question of fact will be reversed, upon appeal, where it clearly appears that such decree is against the weight and preponderance of the evidence. Wallace v. Douglas, 58 W.Va. 102, 51 S.E. 869. Three of the four persons present when this transaction took place--namely, Duffy, plaintiff's attorney, the defendant, and the defendant's brother--testify in unmistakable language that the deed was read to the plaintiff before he signed and acknowledged it; that it was not misrepresented to him; that he thoroughly understood it, in all of its parts and terms; that it was prepared by his attorney; and that, as executed, it embodied the intention and agreement of both the parties to it. The plaintiff alone, whose evidence is in many respects unsatisfactory and self-contradictory, testifies that the deed was not according to the agreement of the parties, and that he did not understand that the deed conveyed the land absolutely when he signed it, but that he supposed it was a deed of trust to secure the money received by him, and that it was so represented to him before he signed it. The theory that the deed and option show truly the intent of the parties is further sustained by the admissions and declarations of the plaintiff made when not a witness and previous to testifying, indicating clearly that he understood the nature and effect of the deed and option, and also by evidence tending to show that the plaintiff before the deed was made offered to sell the land to another party for $150.
It is contended that the indicia of a mortgage are present in the circumstances attending this transaction between plaintiff and defendant, and should control in reaching the conclusion that the deed is a mortgage. This court has at different times recognized certain circumstances as indicia of a...
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