Hudkins v. Crim
| Decision Date | 04 February 1913 |
| Citation | 78 S.E. 1043,72 W.Va. 418 |
| Parties | HUDKINS et al. v. CRIM et al. |
| Court | West Virginia Supreme Court |
Submitted June 15, 1911.
Rehearing Denied June 30, 1913.
Syllabus by the Court.
Whether a deed, absolute or conditional on its face, is, in fact, a mortgage, or a mere security for the payment of money, is a question of intent, largely determinable by the situation of the parties and the surrounding facts and circumstances.
As the proof of equitable title must be clear, mere conflicting oral testimony is generally insufficient to establish it. In addition, there should be facts and circumstances making out an equity in the grantor outside of, and beyond, the oral testimony and independent of the deed.
If the transaction was originally a security for the payment of money, it will be regarded and treated in equity as a mortgage, and the maxim, "Once a mortgage always a mortgage," applies, and it will remain such unless changed by a new contract upon an adequate consideration, so reasonable and fair as to relieve it of any suspicion of unconscientious advantage. Ordinarily subsequent writings not shown to rest upon a valuable consideration, admitting a different relation or conveying the equity of redemption, do not change it.
A purchase of property by a married woman bona fide in its inception does not lose its character as such by the subsequent conduct of the husband intended to defraud his creditors.
A privy in estate is not bound by a judgment or decree recovered against him from whom he derived his estate, after he derived it, merely because of such privity.
A decree dismissing a bill to redeem a mortgage in a cause in which the pleadings make no definite issue as to the location of the boundary lines, but in which evidence was adduced to identify them upon the ground, is not an adjudication as to the location thereof.
The plaintiff in a bill to redeem from a mortgage must manifest willingness to do equity by a tender of the amount due to the mortgagee or by an averment of willingness to have the same paid out of the proceeds of the land.
Appeal from Circuit Court, Barbour County.
Bill in equity by Mary J. Hudkins and another against E. H. Crim and others for an injunction and to compel the conveyance of a tract of land. From a decree rejecting plaintiffs' claim of equitable title, adjudicating the title in defendants dissolving the injunction, and awarding a writ of possession plaintiffs appeal. Decree reversed, injunction reinstated and cause remanded.
Wm. T George, of Philippi, and John B. Dilworth, of La Porte, Ind., for appellants.
J. Blackburn Ware and Warren B. Kittle, both of Philippi, for appellees.
POFFENBARGER, P.
The bill in this cause, having for its purpose an injunction against the prosecution of an action for unlawful entry and detainer, settlement of an account, and a compulsory conveyance of a tract of 40 acres of land, proceeds upon the assertion and claim of a trust, the purposes of which have been accomplished. The appeal is from a decree, rejecting the claim of equitable title, adjudicating title in the defendant, dissolving the injunction, and awarding a writ of possession.
The question presented is very similar to that involved in the case of A. A. Hudkins v. Crim and Peck, decided by this court and reported in 64 W.Va. 225, 61 S.E. 166. This controversy relates to 40 acres of the 192.5-acre tract involved in that suit and there adjudged, as against A. A. Hudkins, to be the property of Crim's heirs. This 40-acre tract is claimed by the wife of E. B. Hudkins under a conveyance from A. A. Hudkins, antedating the adjudication against him.
She purchased it, while the creditor's suit of Crim, instituted in November, 1885, to subject A. A. Hudkins' land to sale for the satisfaction of liens, was pending. Though a pendente lite purchaser and not protected in her purchase for that reason, she claims Crim, the moving plaintiff in that suit who purchased the entire tract of the Hudkins land, made himself a party to the transaction with her. The deed from A. A. Hudkins to her is in Crim"7Ds writing, and he took the purchase-money notes, six in number, amounting to $1,360, by assignment from A. A. Hudkins, which notes were never returned to her and are now in the hands of Crim's executors. As to whether any money was directly paid on them the evidence is conflicting. After the Crim purchase of the entire tract, A. A. Hudkins and E. B. Hudkins, both hopelessly insolvent, continued to reside upon the land, and continued to do business largely in the names of their wives. Some time after the purchase by M. J. Hudkins of the 40-acre tract of land, a residence and outbuildings were erected on the Hudkins farm by her and her husband, and there they have since resided and reared a family.
About the year 1902 or 1903 the Hudkinses gave to the Bijou Coal Company options upon the coal under the land, which Crim refused to recognize, but he later optioned and finally sold the coal under the entire tract to that company at the price specified in the Hudkins options. He died in January, 1905, and, when his executors took charge of his business and attempted to collect the balance due on the purchase money of the coal, the purchaser objected to payment without a release of the claim of M. J. Hudkins. M. Peck, one of the executors, thereupon prepared a quitclaim deed for execution by her and her husband, conveying all their right, title, and interest in the 40 acres to E. H. Crim and C. H. Peck, heirs at law of J. N. B. Crim, and sent it by mail to E. B. Hudkins. It bears date March 21, 1905, and was acknowledged on the 28th day of March, 1905, and returned to Peck.
It is under and in connection with this conveyance that the alleged trust is set up and claimed. Following the established course of conduct, clearly shown by the testimony, M. J. Hudkins acted upon the advice and by the direction of her husband in the execution of the deed. She had no representations from Peck or the Crim heirs as to the purpose, other than those given by her husband, unless the letter transmitting the deed conveyed it, for she had no other direct communication from them or any of them. The letter is not produced nor is its contents shown. As to the purpose of the conveyance, the testimony of E. B. Hudkins, the husband, conflicts with that of Peck and E. H. Crim. He says he called upon them after the receipt of the unexecuted deed, and was assured that the purpose was merely to remove the obstacle to the collection of the money due from the coal company. He says he related to them a prior understanding and agreement between his wife and J. N. B. Crim, to the effect that the balance of the purchase money due from her on her notes given to A. A. Hudkins for purchase money of the land and assigned to Crim was to be paid out of the purchase money of the coal under that land, about 35 acres at $80 an acre, and the surplus paid over to her, and expressed his willingness to execute the deed in order to enable the executors to collect the money from the coal company, provided the surface of the land should be reconveyed to his wife, and that Peck assented, saying "Yes, yes," as the statements were made. He says he then went to E. H. Crim's store with the deed in his possession, and obtained from Crim an envelope in which to mail the deed back after execution and made the same statement to him, and he said "All right," from which statement the witness says he inferred he would do what J. N. B. Crim had agreed to do; and he says E. H. Crim further said he had helped his father make the calculation on the amount due from E. B. Hudkins and his wife, and in that connection said, "Interest counts up fast." All of this is flatly, positively, and totally denied by both Peck and Crim. Nothing was paid for the conveyance, however. The consideration recited in the deed was $1 in hand paid.
The alleged contract between Crim and Mrs. Hudkins antedated his purchase of the Hudkins farm. Under the application of strict legal principles, her purchase under the pendency of that suit was futile and abortive. Legally and logically J. N. B. Crim took by his purchase at the judicial sale such title as a stranger would have acquired thereunder. His preparation of the deed from A. A. Hudkins to M. J. Hudkins and acceptance of the notes of the latter as assignee while the suit was pending constituted no legal impediment to the purchase of the land at the judicial sale.
All of this the theory of the bill necessarily admits. Legal title in J. N. B. Crim is not denied. Though his title is absolute on its face, the bill charges the deed to be in fact a mortgage. Deeds absolute on their faces, whether made under purchases at judicial sales or not, have often been declared to be mortgages in point of fact. In Lawrence v. Du Bois, 16 W.Va. 443, the court held the following circumstances to be indicative of the relation of mortgagor and mortgagee: Vangilder v. Hoffman, 22 W.Va. 1, adds the following circumstances as indicating that relation: "First, that the grantor was hard pressed for money, and that the grantee was a known money lender; second, that the actual execution of the deed was preceded by a negotiation for a loan of money by the grantee to the grantor; third, that the parties did not apparently consider or contemplate the quantity or value of the land." In the inception of the transactions between Crim and the...
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