Odenbaugh v. Bradford

• Decision Date: 03 January 1871
• Citation: 67 Pa. 96
• Parties: Odenbaugh <I>versus</I> Bradford.
• Court: Pennsylvania Supreme Court

67 Pa. 96

Odenbaugh versus Bradford.

Supreme Court of Pennsylvania.

November 17, 1870.

January 3, 1871.

November 17th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Greene county: Of October and November Term 1870, No. 115.

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C. A. Black (with whom were Phelan & Downey, for plaintiff in error.—The court was to decide whether the defendant's primâ facie absolute deed was a mortgage: De France v. De France, 10 Casey 385. The judge's conscience as a chancellor's must be satisfied that the facts show that the deed is not absolute as it purports to be: Haslett v. Haslett, 6 Watts 464; Brawdy v. Brawdy, 7 Barr 167; Moore v. Small, 7 Harris 468. The proof to change the apparent character of the deed must be clear, express, direct, positive and unambiguous: Bash v. Bash, 9 Barr 260; 3 Am. Lead. Cas. in Eq. 626; Cook v. Gudger, 3 Jones's Eq. 182. An equity of redemption must be shown: Storch v. Car, 4 Casey 135; and this must be established by facts and circumstances: Streator v. Jones, 3 Hawks 223; McDonald v. McLeod, 1 Iredell's Eq. 123; Franklin v. Roberts, 2 Id. 260. The claim must be an antecedent debt or contemporaneous loan, and must survive the instrument: Todd v. Campbell, 8 Casey 253.

E. M. Sayers, for defendant in error, cited Rhines v. Baird, 5 Wright 263; Brown v. Wright, 4 Yerger (Tenn.) 57; Random v. Swartz, 1 Yeates 579; Addison on Contracts 302; Russell v. Southard, 12 How. 139.

The opinion of the court was delivered, January 3d 1871, by AGNEW, J.

Upon a thorough examination of this case, a single question is presented, Whether on all the evidence the court was justified in submitting the facts to the jury? Without laying down any rule, it may be conceded, for the purpose of the argument, that a deed absolute on its face cannot be converted into a mortgage, except upon clear and satisfactory evidence of its character as a security for the repayment of money; that the plaintiff in an ejectment to recover against the deed by converting it into a mortgage stands in the position of plaintiff in a bill in equity to redeem; and that the testimony of himself and the defendant have the same effect as the averments contained in the bill and answer: and, finally, that it is the duty of the judge, as it is that of a chancellor, to determine the sufficiency of the evidence, and, if it be insufficient, to refuse to submit the case to the jury. Carrying these views into the examination, we have not been able to say that the court erred in submitting the evidence to the jury to find the fact whether the deed was absolute or conditional. It is a conceded fact, to begin with, that in the year 1840 David Bradford, the plaintiff, was largely in debt; that his property was advertised at sheriff's sale, and that he had been unable to raise means to pay the executions pressing him. According to Bradford's testimony, George W. Odenbaugh, his half-brother, came to the meadow where he was mowing, and proposed an arrangement to relieve him. He recounts minutely the circumstances, giving time, place, the persons present, the reasons given by Odenbaugh and the proposition, which was, that if Bradford would make him a deed for the place he would pay off the judgments, and whenever Bradford paid him back the money and interest he should have the land back. Two of the persons present were Christian Odenbaugh, a brother of George, and Jacob Clifford. Bradford states that Christian said to his brother, "Now, George, if Dave makes you a deed you will not take any advantage of him, will you?" "No," said George, "I won't. God forbid that I should." David Bradford then details the facts as to going with his wife to town the next day and making the deed to Odenbaugh. On the other hand, Odenbaugh denies the statement of Bradford in decided terms. He says Betsy Kent (his sister) first spoke to him of relieving Bradford, and he suggested that the Bradfords should do it. She returned and told him Bradford had failed to get the money. Bradford, he says, came the next day, and this was the first time he saw him on the subject. He then states the bargain for the purchase of the land at $600; his consulting Mr. Cleavinger, a lawyer; Bradford's coming over the following day, and the finishing of the business. Among other things, he stated that he had no private conversation with Mrs. Bradford; that she was examined apart by the magistrate that he never said to any one that the deed was only a security for money — never said so in his life, and he gives as a reason for not entering satisfaction on the judgments paid by him, that he was advised not to do so until he got the possession. Admitting, now, that the denial of Odenbaugh of the leading and material facts testified by Bradford sends us to an examination of the other evidence, how does the case stand? And first we may notice the contradiction of Odenbaugh's statement by other witnesses. He is positively contradicted by Christian Odenbaugh and Jacob Clifford as to the first meeting with Bradford in relation to the offer of relief. He asserts Bradford came first to see him the day before the conveyance. They corroborate Bradford that Odenbaugh came to the meadow, and had there a conversation about the place and the deed. Christian Odenbaugh repeats in substance his own expression stated by Bradford, to wit, "George, if Dave makes you a deed, you will not take any advantage of him?" and George's reply, "No." Odenbaugh is also contradicted by Mrs. Bradford as to their private interview in the entry, and her separate examination by the justice. He is contradicted in regard to the deed. He says he never said to any one that the deed was only a security. Mordecai Barnes, James Porter and Jesse Hook, distinctly say he did; and in effect the testimony of William Kent and Betsy Kent is the same thing. The reliability of Odenbaugh's statement is therefore materially weakened by these contradictions. On the other hand, David Bradford's testimony is corroborated in all its material facts. He is first directly corroborated as to the meeting in the meadow, and the conditional character of the deed to be made, by Christian Odenbaugh and Jacob Clifford, who were present. He is directly corroborated again by his wife as to the nature of the conveyance at the time it was executed and acknowledged. She refused to sign the deed. George took her out into the entry and explained it; said it was only to keep strangers from getting the land; as quick as Dave paid him the money with interest he was to have the land back.

Bradford is further corroborated by Odenbaugh's subsequent admissions to others on the very point of the case....