Scholl v. Hopper

• Decision Date: 26 May 1909
• Citation: 119 S.W. 770,134 Ky. 83
• Parties: SCHOLL v. HOPPER.
• Court: Kentucky Court of Appeals

119 S.W. 770

134 Ky. 83

SCHOLL v. HOPPER.

Court of Appeals of Kentucky.

May 26, 1909

On Rehearing, June 15, 1909.

Appeal from Circuit Court, Russell County.

"To be officially reported."

Suit by William Hopper against L. F. Scholl, to have an absolute deed declared a mortgage. From a decree for complainant, defendant appeals. Reversed and remanded, with directions to dismiss petition.

McQuown & Beckham, N.H. W. Aaron, and J. N. Meadows, for appellant.

Biddison Campbell & Eagleton and Bertram & Phelps, for appellee.

CLAY C.

About 40 years ago Dr. M. D. Hopper and his wife, the mother of appellee, William Hopper, became estranged, and the wife with their infant son, William Hopper, moved from Kentucky to the state of Kansas. Some time thereafter William Hopper was adopted by one Joel Hopper. He grew to manhood out West, and so far as the record shows, had no communication with his father, M. D. Hopper. After the departure of his wife, Dr. Hopper took his meals at the home of Mrs. Scholl. She was the mother of appellant, L. F. Scholl. When appellant was 10 or 12 years of age, he moved to Dr. Hopper's home, and remained there until after he attained his majority. Some time thereafter he engaged in work which required his absence from Jamestown, Ky. where Dr. Hopper lived, but he frequently visited Dr. Hopper, and the latter visited him. Their relations were very intimate. Indeed, it would appear that appellant took the place of the child who had been carried out West by his mother. On November 27, 1905, Dr. M. D. Hopper executed to appellant a general warranty deed, by which he conveyed to him 18 tracts of land, chiefly valuable for the timber thereon. The consideration expressed in the deed was $2,000 cash and the promissory note of appellant for the sum of $3,000 payable one day after date, and secured by a lien on the land conveyed. At the same time, as a part of the transaction, the parties executed a collateral writing, which is as follows: "Jamestown, Ky. Nov. 27, 1905. Whereas M. D. Hopper has this day executed and delivered to L. F. Scholl a deed for 18 tracts of land described as follows: Lying and being on the waters of Caney Fork creek and consisting of 18 tracts adjoining and bounded on the north by the land of D. C. Hopper, on the east by the land of W. T. Mitchell, on the south by the land of M. A. Hopper, on the west by the land of Seth Wade, and being the same land conveyed to said M. D. Hopper by Simco Dockery on the second day of Oct., 1890, by deed recorded in Russell county court clerk's office in Deed Book P, page 323, which deed is referred to and made a part hereof, excluding the land excluded in said deed, for the sum of five thousand dollars, two thousand dollars cash in hand paid and the remaining three thousand dollars evidenced by the promissory note of said second party, of even date herewith, bearing interest from ***. It is further agreed by and between said parties that said M. D. Hopper is to have the use and control and the right to rent and receive the rents from said land and the right to use said land in any way he sees proper. It is further agreed that should said M. D. Hopper pay back to said L. F. Scholl the two thousand dollars with six per cent. interest thereon by the first day of June, 1906, then said Scholl agrees and binds himself to convey said land back to said M. D. Hopper, and said Hopper is to deliver up and surrender to said L. F. Scholl said note of three thousand dollars mentioned herein. L. F. Scholl, M. D. Hopper." This agreement was twice extended by the parties by their writing indorsed thereon. The first extension is as follows: "The time to redeem the land described in this agreement and deed referred to herein is extended to Jan'y 1, 1907. L. F. Scholl, M. D. Hopper." The second extension is as follows: "The time to redeem the land described in the agreement and deed referred to herein is extended to Jan'y 1, 1908. L. F. Scholl, M. D. Hopper."

On August 12, 1907, M. D. Hopper and appellant, L. F. Scholl, agreed to cancel the above agreement, and close their business so far as the transaction in question was concerned. This agreement was indorsed on the collateral agreement and is as follows: "We, M. D. Hopper and L. F. Scholl, having decided to cancel the above agreement and to close our business so far as this transaction is concerned, do hereby agree that said deed shall stand as made. This August 12, 1907. M. D. Hopper, L. F. Scholl. Witness: O. B. Bertram." At the same time the following was indorsed upon the collateral agreement, and signed by M. D. Hopper and witness O. B. Bertram: "I, M. D. Hopper, further agree and it is my desire that L. F. Scholl shall have the land deeded by me to him, and this is to certify that I have this day delivered the above agreement up to L. F. Scholl and directed him to do as he sees fit with same. This August 12, 1907." M. D. Hopper died a resident of Jamestown, Ky. August 18, 1907. Some time thereafter this action was instituted by his son, William Hopper, for the purpose of having the deed to the tracts of land above referred to adjudged a mortgage. Upon submission of the case the chancellor adjudged that the deed referred to was a mortgage. From that judgment this appeal is prosecuted.

For appellee (the plaintiff below) the proof, in brief, is as follows: O. B. Bertram testified that when the parties came to his office on November 27, 1905, Dr. Hopper said he was borrowing $2,000 from L. F. Scholl, and wanted to give him a mortgage on the land owned by him on Caney Fork. Mr. Scholl then asked if it could not be drawn so it would appear on its face as a deed, and have an outside writing between him and Dr. Hopper which would make it a mortgage. Witness replied that this could be done, and Mr. Scholl then said he would rather have it that way, as he would feel safer about the money. Several witnesses testified that the value of the land was far in excess of $5,000 at the time the deed was made; that it worth from $10,000 to $19,000. As to the agreement of August 12, 1907, O. B. Bertram also testified that Mr. Scholl told him, in the presence of Dr. Hopper, that the latter wanted him to have the farm, and the rest of his property to go to his son, who was in the West; that they wanted to do away with the collateral writing referred to, and let the deed stand as made. This conversation occurred before witness did the writing, and was all the information he had in regard to Dr. Hopper's wishes concerning the collateral writing. Witness read the writings over to Dr. Hopper before he signed them. Dr. Hopper told the witness to fix it right. Witness understood from this remark, and from the conversation had with Mr. Scholl in Dr. Hopper's presence, that Dr. Hopper wanted the collateral to be annulled. Witness told Mr. Scholl that, unless a release would change the papers, he knew of no way to do away with the collateral writing, and that he did not believe they could change the status of the papers at all.

For appellant (defendant below) the evidence is as follows: The check given at the time the deed was made recited that it was for part payment on the land. Some $400 or $500 was subsequently paid to Dr. Hopper in small sums at...