Skeels v. Blanchard

• Decision Date: 08 December 1911
• Citation: 81 A. 913,85 Vt. 288
• Parties: SKEELS v. BLANCHARD et al.
• Court: Vermont Supreme Court

81 A. 913

85 Vt. 288

SKEELS

v. BLANCHARD et al.

Supreme Court of Vermont. Windsor.

Dec. 8, 1911.

Appeal in Chancery, Windsor County; Eleazer L. Waterman, Chancellor.

Suit by Homer L. Skeels, administrator, against Harriet M. Blanchard and another. From a decree giving the orator the right to redeem, defendants appeal. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Davis & Davis, for appellants.

William W. Stickney, John G. Sargent, and Homer L. Skeels, for appellee.

MUNSON, J. It is the settled law of this state that a deed absolute upon its face may be shown by parol evidence to be a mortgage. Rob. Vt. Dig. 1855, pl. 33.

It is equally well settled in this state that more than a mere preponderance of evidence is required to secure the reformation of a deed. Rob. Vt. Dig. 2363, pl. 12. The decree establishing the conveyance of the orator's intestate as a mortgage rests upon a finding made on a fair balance of evidence; and the orator cites in support of the sufficiency of the finding the following cases: Campbell v. Worthington, 6 Vt. 448; Baxter v. Willey, 9 Vt. 276, 31 Am. Dec. 623; Wright v. Bates, 13 Vt. 341; Hyndman v. Hyndman, 19 Vt. 9, 46 Am. Dec. 171; Hills v. Loomis, 42 Vt. 562; Howard v. Scott, 50 Vt. 48. The defendants contend that the measure of proof required is the same as in cases of reformation.

In Campbell v. Worthington the court considered that the facts disclosed by the depositions read in evidence were entirely irreconcilable with any other view than that the land was held as security for a debt. In Baxter v. Willey the question whether the transaction was a mortgage was submitted on an agreed statement of facts; so there can have been no question as to the degree of certainty with which the case was made out. In Wright v. Bates the court reviewed the testimony, and said there could be no reasonable doubt that the land was conveyed as security for money advanced. In Hyndman v. Hyndman there was at first an absolute deed and a writing of defeasance. Subsequently the evidences of indebtedness and the writing of defeasance were mutually surrendered upon a parol agreement that the defendant should have the property for a certain sum, free from the equity of redemption, and should sell it and pay the orator whatever he should receive above that sum and an allowance for his trouble. Later the parties executed an indenture, which recited that the defendant held a warranty deed of the premises in consideration of his having paid the orator a certain sum, and fixed a time for repayment, and provided that, on default thereof, the defendant should sell the property at auction and account for the avails as above stated. The orator failed to pay, and the defendant had the property sold at auction; himself becoming the purchaser. In disposing of this case, the court expressed itself as inclined to the opinion that the orator ought to be permitted to redeem. In Hills v. Loomis, upon a consideration of the testimony taken and filed, the court thought it was clear that the parties fully understood that the deed was to be merely security for the money paid, and that the contrary conclusion could not be arrived at without disregarding the most obvious inferences to be drawn from undisputed circumstances. In Howard v. Scott the orators excepted to the report, for that the finding that the deed was in effect a mortgage was against the weight of evidence, and because that was a question for the court, and not for the master. There was no exception to the report on the ground that it did not appear that the master had reached his ultimate finding with the requisite degree of certainty. In sustaining the decree overruling the exceptions, the court said that, when there is evidence tending to establish the facts found, the court will not review the findings as regards the weight to be given to the testimony, and that the party attacking the report on this ground must satisfy the court that the master has acted corruptly, "or has been led astray by having entertained a mistaken view of the law applicable to the testimony." The court nevertheless proceeded to express its opinion that the testimony fully warranted the master in finding the facts reported in regard to the deed. It is clear that, if the evidence fully satisfied the mind of the master, it was not for the court to reverse his finding on its own view as to the weight of the evidence; and there is nothing in the opinion that necessarily implies more than this.

It appears from this review of the cases cited by the orator that our court has generally placed itself upon ground which satisfies the rule contended for by the defendants, but without the existence of such a rule being brought in issue or referred to.

The case of Herrick's Adm'r v. Teachout, 74 Vt. 190, 52 Atl. 432, should be considered in this connection. There it appeared from the master's report that the orator's intestate took the title to the farm in question upon a parol agreement that he would relieve the estate from certain claims and pay the incumbrances resting on the farm, and deed the farm to the defendant when reimbursed for these expenditures, and that in default of such reimbursement the farm might be sold, and the proceeds be applied in satisfaction of the sums so expended, and the balance, if any, be paid to the defendant. No question was raised as to the degree of certainty with which the facts reported were found. The case turned upon the effect to be given to certain terms and findings of the report deemed capable of two constructions, and with reference to this it was said that in all doubtful cases the law will construe the contract to be a mortgage, because such a construction is most likely to attain the ends of justice.

The orator cites in support of his contention certain language used by Judge Poland in Rich v. Doane, 35 Vt. 124. In this case there was an unconditional deed and a bond for reconveyance, with parol evidence of what the parties said and intended. The opinion says that upon the face of the papers the transaction was clearly an absolute conveyance with a right of repurchase, but nevertheless prefaces an examination of the evidence with the statement that, when enough is proved to render it fairly doubtful whether the conveyance was a mere security or an absolute conveyance with a right of repurchase, the premises will be held redeemable. This assertion was entirely unnecessary, for the transaction was held to be an absolute conveyance upon a final statement that certain stipulations about which there was no question were wholly inconsistent and incompatible with the claim that the deed was a mortgage.

It is definitely held in about half the jurisdictions of this country that more than a mere preponderance of evidence is required to show that a deed absolute in form is a mortgage. 1 Jones, Mort. §§ 286-320. Various terms are used to indicate the degree of proof required. No middle ground between mere preponderance and the exclusion of reasonable doubt has been recognized in this state. Bradish v. Bliss, 35 Vt. 327. Some authorities distinctly state that the rule in cases of this class is the same as in cases of reformation on the ground of mistake. Howland v. Blake, 97 U. S. 624, 24 L. Ed. 1027. The rule regarding certainty is sometimes stated in apparently contradictory terms by the same court. It is said that the claim that an unconditional deed is, in fact, a mortgage must be established with certainty, and yet it is said that in doubtful cases the court will treat the transaction as a mortgage rather than a sale. It is evident that these statements are not regarded as inconsistent, and the explanation of the apparent discrepancy will doubtless he found in...