Reed v. Reed

• Decision Date: 02 June 1883
• Citation: 75 Me. 264
• Parties: ELLEN A. REED, administratrix, in equity, v. FRANKLIN REED.
• Court: Maine Supreme Court

75 Me. 264

ELLEN A. REED, administratrix, in equity, v. FRANKLIN REED.

Supreme Judicial Court of Maine.

June 2, 1883

Bill in equity.

Heard on bill, answer and proof.

The plaintiff is the widow and administratrix of Samuel D. Reed.

The opinion states the material facts.

The following is the written agreement of the defendant referred to in the opinion:

" Whereas, Samuel D. Reed, of Bath, in the county of Sagadahoc and state of Maine, has by his deed dated the eighth day of May, A. D. 1873, conveyed to me certain land situate and lying in the county of Marathon, in the state of Wisconsin, containing in all about twenty-four hundred and eighty acres, in consideration of a certain sum of money paid by me to him on the delivery of said deed, and inasmuch as neither said Samuel D. nor myself are fully acquainted with the real value of said lands, and know not that they are worth a sum beyond what I have already paid him therefor; and I do not desire to speculate at his expense, nor to deprive him of any advantage that may accrue from the rise in value in said lands; therefore in consideration of these circumstances, I do for a valuable consideration to me paid by said Samuel D. promise and agree to and with said Samuel D. that if at any time during his life-time I shall sell and dispose of said land or any part thereof at a sufficient price to leave a balance after deducting all payments, costs charges, expenses and interest, and all sums of money that may be due me from him, that I will pay said balance to him if he shall demand it. This promise and agreement does not extend to the heirs, executors or administrators of said Samuel D. but the same is confined to him personally during his lifetime, and it is understood that at his decease no rights or claims of any nature incident to or growing out of this agreement shall survive.

(Signed) Franklin Reed."

" Witness, F. W. Weeks.

Bath May 8, 1873."

Adams and Coombs, for the plaintiff, cited: Story, Conflict of Laws, 454-457; 2 Story, Eq. Jur. 48, 49, 185; 2 Kent's Com. (4th ed.) 463 and notes; Laughton v. Harden, 68 Me. 208; Graves v. Blondell, 70 Me. 190; Egery v. Johnson, 70 Me. 258; Eveleth v. Wilson, 15 Me. 109; Peterson v. Grover, 20 Me. 363; White v. Chadbourne, 41 Me. 149.

C. W. Larrabee, for the defendant.

The plaintiff in her bill says that the conveyance of May 8th, 1873, from her intestate to defendant, was made to secure defendant for money loaned; that the sum loaned was less than the consideration named in said deed; and that the sum thus loaned has been repaid, either by said intestate during his life-time or since his death, from proceeds of property in defendant's hands that belonged to said estate.

This is negatived by the evidence in writing, both by the deed and the writing signed by defendant and by defendant's answer. There is no direct evidence in the case to contradict the defendant's answer. The declaration of the husband, made to the wife when she released her right of dower, without the knowledge of defendant and of which the defendant was not informed, cannot be received to change an absolute into a conditional deed.

This leaves the allegation of plaintiff as to the point whether or not the deed was defeasible, as stated in her complaint, upon herself, naked in contrast with defendant's positive answer that he purchased the land in good faith, and paid for it what at the time he believed to be a fair price, viz: two thousand dollars. The answer of defendant was responsive to the allegations in the bill upon this point, and must prevail. 2 Story's Eq. Jurisprudence, 1528; Flagg v. Mann, 2 Sumner 206.

The book entries are not such records of deceased as to entitle them to weight. They are the casual jotting upon an unused book. The book itself is the best evidence to show that it is not evidence. To make such a book evidence, it must appear that the entries were made by deceased in the regular course of business. Lord v. Moore, 37 Me. 220; 1 Wharton 684; Bonnell v. Mawha, 37 N.J. 198.

In this case there was no loan in contemplation, and no stipulation for repayment; and the vendee had no remedy against the vendor. He took no voucher for the money paid, only a deed. Such a relation must exist, either by express or implied agreement, in order to establish a mortgage. Conway's executors v. Alexander, 7 Cranch 237.

A stipulation that if the grantor can within a limited time dispose of the land to better advantage, he may do so, paying to the grantee the " " consideration money" mentioned in the deed, does not make the instrument a mortgage. 1 Jones Mortgages, 271; Stratton v. Sabin, 9 Ohio 28.

If the defendant took the deed from Samuel D. for an agreed consideration, and for the reasons set forth in his answer, voluntarily and without any consideration therefor, gave him the writing set forth in plaintiff's bill, it did not change the tenure or title. It was simply a personal and conditional promise dependent on the conditions therein specified.

There is no intrinsic evidence from the writing itself, in conflict with defendant's answer. It recites that defendant had then already paid all that the land might bring on resale, and the promise that if he should sell during the lifetime of the grantor, for a price sufficient to leave a balance after deducting all payments, costs, charges and interest, and all sums of money that may be due, etc. that he will pay him said balance if demanded, etc. This of itself would not create a defeasance in the title. And unless it was done in fraud of the other creditors of said Samuel D. the plaintiff in her said capacity, has no claim in law or equity therefor against this defendant.

Counsel further argued the question of alleged fraud in the conveyance from plaintiff's intestate to the defendant, contending that no fraud entered into the transaction, that the defendant paid all that either of the parties at the time thought the land was worth.

VIRGIN J.

Bill in equity, brought in behalf of the creditors of an intestate's estate which has been duly decreed insolvent, and heard on bill, answer and proof.

The bill alleges that the absolute deed of May 8, 1873, whereby the intestate conveyed to his nephew, the defendant, twenty-four hundred and eighty acres of land situated in Wisconsin, was given in fraud of his creditors, or else to secure a contemporaneous loan of money, and invokes the equity power of the court to so decree.

Prior to 1874, the equity jurisdiction of this court in regard to mortgages, was limited to " suits for the redemption of estates mortgaged." R. S., c. 77, § 5. This provision was invariably construed to apply to those conveyances only which are legal, as distinguished from equitable mortgages--where the condition is a part of the deed itself, or there is a separate instrument of defeasance under seal, executed by the grantee to the grantor, as a part of the absolute conveyance. R. S., c. 90, § 1; French v. Sturdivant, 8 Me. 246; Shaw v. Gray, 23 Me. 174; Richardson v. Woodbury, 43 Me. 206, 210. But since the enactment of St. 1874, c. 175, conferring full jurisdiction in equity, the court has had complete power over equitable mortgages. Thomaston Bank v. Stimpson, 21 Me. 195.

The administratrix of an estate duly decreed insolvent, being the representative of all who have an interest in its distribution, is the proper party to bring the suit in behalf of its creditors. McLean v. Weeks, 65 Me. 411, 418; Pulsifer v. Waterman, 73 Me. 233, 241. And inasmuch as equity proceeds, and its decree is in personam and not in rem, and the deed is the subject matter of the suit, the fact that the situs of the land described in the deed is in another state, is no objection to the maintenance of the bill as the parties are residents here. Arglasse v. Muschamp, 1 Vern. 77; Massie v. Watts, 6 Cranch 148, 160; Brown v. Desmond, 100 Mass. 267.

While at law, to constitute a mortgage, the deed itself must contain the condition, or, in case of an absolute deed, there must be a separate instrument of defeasance, of as high a nature as the deed, given by the grantee to the grantor, as a part of the transaction, it is the uniform doctrine of the English court of chancery, as well as of the federal courts and of the highest courts of well-nigh all of the states having full equity jurisdiction, that where a conveyance is made by a deed absolute in form, the transaction may, in equity, be shown by a written instrument not under seal, or by oral evidence alone, to have been intended as a security for a preexisting debt, or for a contemporaneous loan. 4 Kent, (12th ed.) 142 et seq.; 3 Lead. Cas. in Eq. (3d Am. ed.) White and Tudor's notes to Thornbrough v. Baker, 605 et seq.; Hare and Wallace's notes, S. C. 624 et seq.; 1 Jones Mort. c. 8.

This principle was recognized by this court long before the legislature conferred upon it sufficient jurisdiction to so declare it. Woodman v. Woodman, 3 Me. 350; Fales v. Reynolds, 14 Me. 89; Thomaston Bank v. Stimpson, 21 Me. 195; Whitney v. Batchelder, 32 Me. 313, 315; Howe v. Russell, 36 Me. 115; Richardson v. Woodbury, 43 Me. 206. The dictum of a majority of the court in the last mentioned case, holding that when a deed absolute in terms, is given to secure a debt due to the grantee, a resulting trust arises by implication of law, is not supported by any reliable authority or well grounded reason and it has never been followed.

The mere contemporaneous oral agreement or understanding alone of the parties to a deed, is not admissible to vary the express terms of the instrument which in equity as well as in law, is the exponent of their meaning, unless some overruling equity in addition to such understanding is shown, from which it...