Murray v. Riley

• Decision Date: 09 January 1886
• Citation: 6 N.E. 512,140 Mass. 490
• Parties: MURRAY v. RILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 490

6 N.E. 512

MURRAY v. RILEY.

Supreme Judicial Court of Massachusetts, Bristol.

January 9, 1886

The plaintiff testifies to this effect:

"Riley did not comply with the condition of the bond. He never paid or tendered me the amount he was to pay. After the expiration of the year, I told him he could live there another year by paying me as rent $6.25 a month. He agreed to pay that as rent."

There was other testimony as to payments of rent by defendant.

The defendant claimed that he did not pay the plaintiff any money for rent, but as interest on money due. There was never any foreclosure of the instrument which the defendant claimed was a mortgage, and not a deed, and he asked the court to rule that, as there never had been a foreclosure, he had still a right to redeem the same. The judge declined to rule thus and found that the deed was not a mortgage, and that the parol agreement between the parties, at the expiration of the year mentioned in the bond, made the defendant the tenant at will of the plaintiff. Judgment was ordered for the plaintiff, and the defendant appeals.

COUNSEL

J.W. Cummings and T.F. McDonough, for defendant.

J.M Morton and A.H. Hood, for plaintiff.

OPINION

DEVENS J.

The superior court having found as a fact that the deed and the bond to reconvey were not intended to and did not constitute a mortgage, such finding will not be here revised, unless, as matter of law, it could not properly have been made. Sheffield v. Otis, 107 Mass. 282; Edmundson v. Bric, 136 Mass. 189.

Whether the transaction by which the defendant conveyed to the plaintiff the premises in question, receiving in return an agreement to reconvey on the performance of a certain condition, was a mortgage or a sale, depended on the intention of the parties, to be ascertained from the whole character of the transaction, as well as from the expressions in the instruments themselves. Undoubtedly those expressions might be so clear in the conveyance as to leave nothing for construction; as if the whole contract had been embraced in an ordinary mortgage deed, with the usual provisions, showing that such conveyance was in truth only security for a loan. Where it appeared from an instrument, executed contemporaneously between grantor and grantee, that the grantor had a right to "redeem" the estate, and agreed to "refund" the money advanced, it was held to be necessarily a mortgage. Bayley v. Bailey, 5 Gray, 505. Where it was agreed that, if the party entitled to reconveyance should fail to pay at the time specified, the deed should be absolute, "with no further right of redemption," it was also held that the intent to make a mortgage was clear, as a right of redemption necessarily implied that a mortgage interest was all that was conveyed. Murphy v. Calley, 1 Allen, 107. Where language is not explicit, and does not control the circumstances attending the transaction, it is competent to determine from them, and the expressions used in regard to them, what the intention is. Conversely, it may thus be shown that a deed absolute in form is really a security for a loan. Flagg v. Mann, 14 Pick. 467, 480; Campbell v. Dearborn, 109 Mass. 130, 141; Hassam v. Barrett, 115 Mass. 256.

The plaintiff in the case at bar had held an earlier mortgage on this property....