Lawrence v. DuBois
| Decision Date | 10 April 1880 |
| Parties | LAWRENCE et al. v. DU BOIS et al. |
| Court | West Virginia Supreme Court |
1. Though a deed be absolute on its face, the real nature of the transaction can be proven by parol evidence or surrounding circumstances, and the deed be held to be a mortgage.
2. The following circumstances have great weight in determining that a deed absolute on its face is a mortgage: First, Where the parties admit that the grantor owes after the execution of the deed the consideration of the land to the grantee as a debt. Second, if this alleged consideration is grossly inadequate. Third, If the vendor remains in possession of the land for many years without the payment of any rent.
3. A suit by the grantor in a deed absolute on its face, to have it declared and held to be a mortgage, may be brought in the county where the grantee resides, though the land lie in another county.
4. A deed absolute on its face, if shown to have been originally a mortgage by parol proof and the surrounding circumstances may be declared a mortgage, though the land has passed into the hands of a grantee who paid no consideration for the land, or into the hands of a purchaser for valuable consideration who had notice of the character of the original transaction.
5. In a suit, where a husband and wife are defendants, the evidence of the husband cannot be received for the wife.
6. The declarations of an agent, made while he is performing the act authorized by the principal, which qualify and characterize the act, are admissible in evidence against the principal as a part of the res gestae.
Appeal from and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 12th day of December, 1876, in a cause in chancery in said court then pending, wherein Merriman M. Lawrence and others were plaintiffs and Henry A. Du Bois and others were defendants allowed upon the petition of Merriman M. Lawrence and Charles K. Lawrence.
Hon Joseph Smith, judge of the seventh judicial circuit, rendered the judgment appealed from.
Green, President, furnishes the following statement of the case:
In July, 1873, Merriman M. Lawrence filed his bill in the circuit court of Kanawha county against Henry A. DuBois Delafield DuBois and Alice G. DuBois, his wife. In this bill he states, that one Harrison Adkins held a title-bond for a certain tract of land in Boone county, West Virginia, executed to him by one Thomas Payne, and in 1853 said Adkins transferred this bond to the plaintiff, M. M. Lawrence, whereby he became the equitable owner of this tract of land, and he shortly after transferred this title-bond to Henry A. DuBois, one of the defendants, for the express purpose of securing to him the payment of $50.00 which he owed him, and as a further security for the payment of this $50.00 the plaintiff, M. M. Lawrence, directed Thomas Payne to execute a deed for said tract of land to said DuBois, it being understood and agreed between them that upon the payment to him of the $50.00 and the interest thereon the said DuBois would convey the land to a trustee for the benefit of the plaintiffs, M. M. Lawrence's children. And thereupon Payne and wife did execute a deed conveying this tract of land to H. A. DuBois absolutely, A copy of this deed is filed with the bill, dated April 9, 1853, and was recorded on October 1, 1853. It recites the title-bonds aforesaid and the transfers of them as above stated. The bill alleges, that the plaintiff, M. M. Lawrence, was, when this deed was made, in the possession of this tract of land and continued in possession of it nineteen years afterwards, that is, till 1872, and paid the taxes on it during all that time. And he filed with the bill the clerk's receipt for the redemption of the land, which had been sold for taxes for the years 1855, 1856 and 1857, and also the sheriff's receipt for the taxes on this tract, which contained three hundred acres and lay on Short creek, for the year 1869. The amount paid to the clerk was $1.50 and to the sheriff $2.10. The land was again sold for the non-payment of taxes in 1868, and redeemed by the plaintiff, M. M. Lawrence; and he files with his bill the sheriff's receipt for the money to redeem this land amounting to $3.77. The bill alleges, that the $50.00 and the interest thereon due from the plaintiff to H. A. DuBois had been fully paid; and he files with the bill a receipt for the payment of $20 on this debt, as the plaintiff alleges, signed by the defendant, Delafield DuBois, who, the bill alleges, was the agent of his uncle Henry A. DuBois.
The receipt is in these words:
" Sept. 25th, 1870.
Rec'd of Merriman Lawrence the sum of twenty dollars on account, to be applied to debt due on land on Short creek.
| $20.00. | DELAFIELD DUBOIS." |
This bill also states, that Henry A. DuBois, in 1872, unjustly by suit ejected the plaintiff, M. M. Lawrence, from this tract of land, and afterwards, on May 27, 1872, he and his wife conveyed with special warranty of title this tract of land to Alice Goddard DuBois, the wife of Delafield DuBois, and to her husband. This deed was recorded October 2, 1872, and a certified copy of it is filed with the bill, which shows the conveyance to be to said Delafield DuBois and his wife. But since the cause has been on appeal in this Court, the original of this deed has been produced, from which it appears that a mistake was made in recording it, the word " heirs" by mistake being copiel " husband; " and the deed is in fact to Alice Goddard DuBois, the wife of Delafield DuBois, and her heirs; and by consent of parties this is to be regarded as the real deed and as if it had been filed in the court below. The consideration recited in the deed is one dollar; but the bill alleges that it was a voluntary deed. The prayer of this bill is, that this deed may be set aside, and a deed be decreed to be made conveying this tract of land to a trustee for the use and benefit of the children of the plaintiff, M. M. Lawrence, and for general relief.
On November 11, 1873, this bill was demurred to specially, and among other grounds of demurrer it was claimed, that the children of the plaintiff were, on the facts stated in the bill, entitled to sue, and the plaintiff having no interest in the land had no right to file this bill; and the court gave leave to the plaintiff to file an amended bill making additional parties. This amended bill was filed October, 1874. It alleges that the contract or understanding between M. M. Lawrence and Henry A. DuBois with reference to this tract of land being a security for this $50.00 was in writing, but has been lost, it having been held by one Houston Estill, an agent of DuBois at that time, but who had died some nine years before the filing of this amended bill; and it further alleges that both Delafield DuBois and Alice G. DuBois, when said deed to them was made, knew the terms of this contract or agreement. This amended bill makes the children of M. M. Lawrence, that is, James K. Lawrence and Ann S. Lawrence, infants, by their next friend, William D. Pate, and John W. Lawrence and William R. Lawrence, adults, additional parties plaintiff, reiterates the statements of the original bill, and concludes with a similar prayer.
The defendants moved the court to strike out such portions of this amended bill as made these new parties, and also filed a demurrer to this amended bill, in which it is claimed among other things, that as the bill and amended bill show on their face that the land in controversy lay in Boone county, the circuit court of Kanawha county had no jurisdiction in this cause.
Subsequently Henry A. DuBois filed his answer to this bill and amended bill. In this answer he says he purchased this tract of land for a valuable consideration from Thomas Payne and wife in 1853, under these circumstances; that the plaintiff, M. M. Lawrence came to him and told him he was about to be ejected from this land by his creditors, he being much embarrassed, and offered to sell it for $50.00, which he, DuBois, at first declined, but was persuaded to accept the offer, and he paid the $50.00 cash and got a deed from Payne and wife in fee simple for the land, and permitted M. M. Lawrence to occupy it as his tenant at will. He denies positively that this sale was either a mortgage or a conditional sale, but was, he says, an absolute sale in fee simple. He denies that Houston Estill was his agent in the purchase of this land, though he was hired by him as a book-keeper and to do other duties from time to time as he might direct. He denies that any written or other contract ever existed between him and said Lawrence, or that said Estill ever held such a contract. He says that with perhaps one or two exceptions he paid the taxes on this land from and after 1853 till he conveyed it to his neice in law, and that these taxes and interest on them amounted to about $250.00. He files with his answer the sheriff's receipt for the taxes of 1868, amounting to $9.94, the recorder's receipt for $3.90 for redemption of this land sold in 1871 for non-payment of taxes, and bought by plaintiff, M. M. Lawrence, and alleges that any payments of taxes which were made by the plaintiff, M. M. Lawrence, were made in his own wrong, and whenever the land was sold for taxes, it was an improper sale, he always having paid the taxes. He admits the payment of the $20.00 to his nephew, Delafield DuBois, wto was then his agent; but it was made, he says, on a large debt due from said M. M. Lawrence to him for the rent of this land and timber cut from it. He alleges that he owed his nephew, Delafield DuBois, a large sum for professional services as his lawyer, and sold him this land in satisfaction thereof, and at his instance conveyed it to his wife. H...
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