Klinck v. Pkice

• Citation: 4 W.Va. 4
• Court: West Virginia Supreme Court
• Decision Date: 31 January 1870
• Parties: Seth H. Klinck v. Ehoderick Pkice.

4 W.Va. 4

Seth H. Klinck

v.Ehoderick Pkice.

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. The effect of a conveyance, made in New York, of real estate lying in this

State, must be determined by the law of this State. But where a contract for the loan of money, to secure the payment of which the conveyance is executed, is made in New York, as to its nature, construction and validity, it is to be governed by the laws of that State. And where the law of that State relating to the subject does not appear in the record, no court of this State can judicially know what it is,

2. P. and K. were citizens of New York. P. owned lands in this State, and

employed K. as an agent to come to this State and endeavor to sell the same. K. failed to make sale, and learning from P. that he was in straitened circumstances for money, proposed to loan him money, at rates that were exorbitant and usurious, if he would execute him a deed for the lands as security. P. executed a deed that was absolute and in fee simple on its face, and K executed on the same day, an agreement to P., stipulating that he might elect to repurchase the lands for a certain sum in three months and certain other and greater sums in six and twelve

months respectively, if he would so elect at the expiration of six months from the date of the agreement, which sums were largely in excess of the consideration expressed in the deed, and six per cent, interest thereon. K. refused to permit P. to repurchase after failure to elect at the expiration of six months, claiming that the sale and deed were absolute. P. filed his bill to cancel the deed, alleging that the transaction was only for the security of money, and was usurious in its character. The proofs in the cause tended to show that the transaction was a loan of money and the land was held as security. Held:

i. That the transaction was in effect a mortgage, and that P. was entitled to redeem the land upon the payment of the consideration expressed in the deed, with interest thereon.

II. That as the contract was made in the State of New York, and as to its nature, construction and validity, must be governed by the law of that State, and the law of that State on usury was not pleaded, the courts of this State could not judicially know what it was, and therefore, it did not appear that the transaction was usurious.

Rhoderick Price, of New York, filed a bill in the circuit court of Wood county, at September rules, 1860, alleging that he was the owner of a valuable tract of land lying in the counties of Wood and Ritchie, contiguous to the Northwestern Virginia railroad, and that on the 17th day of February, 1859, he entered into an agreement with one Seth H. Klinck, also a citizen of New York, who was by the terms thereof, to go to Virginia as the agent of Price, and endeavor to make sale of the land. That Price was greatly in need of money. That for his services as agent, Klinck was to receive the sum of 1000 dollars for the space of three months, and expenses. There were other stipulations in the agreement not necessary to be mentioned. The bill further alleged that Klinck wrote several letters to the complainant whilst in Virginia, concerning his progress in negotiating a sale of the land, which contained various items of details; in some stating that the land could be sold for seventy-five thousand dollars if it were not for the suspicions and rascality of the people, &c. The bill also alleged that some time in May, 1859, Klinck returned to New York, and informed the complainant that he could sell to parties in New York city; that they went to the city together, and after many days effort, no sale was made; that the complainant, from day to day would, in speaking of his private affairs, tell the defendant that he was greatly in need of money, and finally offered to sell the defendant fifty or one hundred acres of the laud at lower rates than he had offered it to others, in order to raise money. This proposition the defendant declined, and stated that he did not; wish to buy. The defendant then stated that he had thought of offering to loan some money to the complainant, but disliked to do so as it would be hard on him meaning that he would have to charge a high rate of interest. The defendant then proposed to loan the complainant a sum of money on certain 458 acres of land on one side of the railroad, and that the complainant could redeem it at the end of three months, by paying to the defendant the sum of 5, 152 dollars and 50 cents, or at the end of six months by paying 5, 725 dollars, or at the end of twelve months by paying 6, 870 dollars, on certain conditions; but at the same time stated that the complainant must execute a deed for the land to the defendant, as he would not loan money on any other security than an absolute conveyance to be drawn up by a New York lawyer; and if the complainant would make the deed the defendant would do all he could to make sale of the land. That shortly after this, the defendant came to the complainant with a deed for the land drawn in New York city, and an agreement. After some negotiations, the complainant trusting in the protestations of friendship made by the defendant executed the deed on the 17th of June, 1859, for 458 acres of land, in fee simple, and an agreement was executed by the defendant, whereby he agreed to sell to the complainant the 458 acres of land at any time within six months, in consideration that the complainant would pay the defendant 5, 152 dollars and. 50 cents, if he...