Sutphen v. Cushman

• Decision Date: 30 April 1864
• Citation: 35 Ill. 186,1864 WL 3042
• Parties: CHARLES H. SUTPHENv.WILLIAM H. W. CUSHMAN.
• Court: Illinois Supreme Court

35 Ill. 186

1864 WL 3042 (Ill.)

CHARLES H. SUTPHEN

v.WILLIAM H. W. CUSHMAN.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from the Circuit Court of La Salle County.

Bill in equity filed by appellant against appellee, to redeem from what purported to be an absolute deed, but which appellant alleged to be a mortgage.

The decree below was for the complainant, but found the amount due upon the mortgage to be $4,179.18, upon payment of which, a redemption was to be allowed.

The errors and cross-errors assigned raise the questions, whether the transaction was a mortgage or a conditional sale; and, if a mortgage, as to the amount rightfully due and to be paid on redemption.

Gray, Avery & Bushnell and Leland & Blanchard, for appellant.Glover, Cook & Campbell, for appellee.

BECKWITH, J.

The appellant seeks, by a bill in equity, to redeem from an alleged mortgage executed by him to the appellee on the 19th day of February, 1856. A deed of that date was executed by him to the appellee conveying several tracts of land in La Salle county, containing three hundred and forty-five acres, which, in form, was an absolute conveyance, but which he insists was intended as a security for existing and future indebtedness. On the 8th day of December, 1856, and on the 3d day of January, 1857, the appellee reconveyed to the appellant two hundred and twenty-nine 39-100 acres of the land; seventy and 69-100 of which were sold to Aaron C. Badgley; and one hundred and fifty-eight and 70-100 to John R. Snyder. The remainder of the premises was the homestead of the appellant, upon which he then resided and still resides; and to redeem which the suit is brought. At the time the deed first mentioned was made, the appellant was indebted to the appellee upon a bond dated the 1st day of November, 1852, conditioned for the payment of $1,771.85, with interest payable annually, which indebtedness was secured by a deed of trust of the latter date to Samuel B. Gridley of the premises first mentioned. The first year's interest upon this indebtedness had been paid. The appellant was at that time also indebted to the appellee upon a promissory note for the sum of $1,400, which fell due the 1st day of November, 1853, and was secured by a deed of trust of the same premises to Samuel B. Gridley, dated the 1st day of May, 1853. Upon the indebtedness last mentioned, the sum of $100 was paid the 25th day of August, 1853, and the further sum of $200 on the 4th day of October, 1853. A computation of the amount due upon the bond and note on the 19th of February, 1856, shows it to have been $3,705.45 at that time. On the 27th of October, 1854, the appellee received from the appellant, as collateral security for the payment of the indebtedness, two notes against one Lighthall, dated the first day of September, 1854, for the sum of $250 each, payable the 1st day of June, 1854, with interest at the rate of ten per cent. per annum; upon one of which the sum of $175 was indorsed on the day of its date.

On the 12th day of June, 1855, the appellee received from the appellant, as collateral security for the payment of the indebtedness, another note against Lighthall, dated the 1st day of September, 1854, for the sum of $500, and payable the 1st day of September, 1855, with interest at the rate of ten per cent. per annum. Some small sums of money were collected on these notes by the appellee prior to the 19th of February, 1856, and much more after that time. It is not important for our present purpose to ascertain the precise times when these collections were made, inasmuch as none of them were accounted for by the appellee until long after the deed in question was executed. On the 19th of February, 1856, a settlement was made by the parties, and it was then agreed between them that there was due from the appellant to the appellee the sum of $4,101.20. It appears that the sums due upon the appellant's bond and note constituted two items of the account settled on that occasion, but there is no evidence of what items the residue consisted. It has been suggested that the residue of the account was usury, but there is no evidence which enables us to arrive at that conclusion. The evidence establishes various other facts and circumstances under which the deed in question was executed. Some of them deserve especial notice.

It appears that on or about the 7th day of June, 1853, the appellant purchased of John T. Cook several tracts of land, for the sum of $4,100.82, payable on the 1st day of November, 1853, with interest at ten per cent. per annum after the 1st day of May, 1853. The whole, or the greater part of these lands were afterwards sold by the appellant to Philander Shaw. On the 7th day of June, 1853, the appellant executed a written agreement to the appellee, to pay him, as Cook's agent, the purchase money for these lands, and secured the payment of the same by the deed of trust to Samuel B. Gridley, given to secure the payment of the appellant's note for fourteen hundred dollars. To enable the appellee to convey the lands to the appellant when the purchase money should be paid, Cook conveyed the lands to the appellee, and he, on the 25th day of June, 1854, conveyed the same to the appellant, who conveyed the whole or a part of them to Shaw. On the 4th day of February, 1854, the appellant paid to the appellee as Cook's agent, the sum of $500, and on the 1st day of March, 1854, the further sum of $3,571, leaving a balance unpaid of $420.60, apparently due when the deed in question was executed. There is, however, no evidence that this balance was included in the settlement made by the parties at that time.

The appellant was indebted to George S. Fisher in the sum of $736, for which he had obtained a judgment; and was also indebted to Jacob V. B. Graham in the sum of $1,012, secured by a mortgage upon the premises before described. These are the principal circumstances under which the settlement was made and the deed in question executed. The appellee, on that occasion, agreed to pay the debts due to Fisher and Graham, and executed to the appellant his six promissory notes, for the sum of $7,950. In determining whether the transaction consummated by the deed in question was an absolute sale, or should be regarded merely as a mortgage, we entirely disregard the testimony of those witnesses introduced for the purpose of establishing their understanding of the nature of the transaction, and who relate conversations of the parties. The conveyance purports to convey an absolute estate to the grantee, and it must be taken as the exponent of the rights of the parties, unless some equity is shown, not founded on the mere allegation of a contemporaneous understanding inconsistent with the terms of the deed, but independently, both of the deed itself and of the understanding with which it was executed. The right to redeem lands so conveyed cannot be established by simply proving that such was the understanding on which the deed was executed, because equity, as well as the law, will seek for the understanding of the parties in the deed itself. The right must be one paramount to, and independent of, the terms of the deed, as well as of any understanding between the parties at the time it was executed. Parol evidence is admissible so far as it conduces to show the relations between the parties, or to show any other fact or circumstance of a nature to control the deed and to establish such an equity as would give a right of redemption, and no further. In the application of this rule, parol evidence is received to establish the fact that a debt existed, or money loaned on account of which the conveyance was made; for such facts will, in a court of equity, control the operation of the deed. So, too, in regard to any other fact or circumstance having the same operation. 3 Lead. Cas. Eq., 628, and cases cited. From some expressions of opinion in cases hitherto decided by this court, it has been supposed that a more enlarged rule has been adopted in this state, but a careful examination of them will show that this court has never departed from the rule we now enunciate. In examining our reported cases, it should be remembered that the manner in which testimony has been taken in chancery causes has often introduced into records brought to this court testimony that was irrelevant and inadmissible, some of which has been reported inadvertently, and care should be taken to ascertain the precise question presented for the consideratiou of the court, as well as its decision thereon. While irrelevant and inadmissible testimony thus brought before the court is disregarded, it would serve no purpose worth the while for us to point it out in detail on every such occasion, and, ordinarily, we have not done so.

In Delahay v. McConnel, 4 Scam., 157, a grantee had executed a bond, stating that the deed to him, though absolute in its terms, was intended only as a mortgage, and conditioned for the reconveyance of the premises upon payment of the indebtedness which the deed was intended to secure. The only question before the court was, whether the intention of the parties might be manifested by a written defeasance executed simultaneously with the conveyance. In Ferguson v. Sutphen, 3 Gilm., 547, the question arose in regard to lands purchased at a government land sale. Parol evidence was received to establish the fact that an arrangement was made before the sale, between the occupant of the lands and the purchaser, by the terms of which he was to make the purchase and convey the lands to the occupant upon payment of the sum paid to the government, with a stipulated advance thereon. From the nature of the arrangement, and the circumstances under which it was made, it was evident that the transaction was one for the loan of money with security for its payment. In Coates v. Woodworth, 13 Ill., 654, Woodworth was indebted to Tarbox, for which he held Woodworth's lands as...