Thaoker v. Morris

• Decision Date: 14 January 1903
• Citation: 43 S.E. 141,52 W. Va. 220
• Parties: THAOKER. v. MORRIS.
• Court: West Virginia Supreme Court

43 S.E. 141

52 W. Va. 220

THAOKER.

v.MORRIS.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1903.

MORTGAGES—ABSOLUTE CONVEYANCE FOR SECURITY—TRUST DEED—SALE.

1. The sale or conveyance of land to a creditor for the payment of a debt with a proviso that such sale or conveyance shall be void on the payment of the debt within a certain specified time will be treated in equity as a security for the debt, and not an absolute sale or conveyance.

2. If a trustee advertises land for sale under a deed of trust, and he induces the creditor and debtor to enter into an arrangement by which the form of a sale is to be gone through with, but the creditor is to become the purchaser at the sum total of the debt and expenses of sale, an amount far less than the fair value of the land, with the understanding that, if the debtor pays such sum within 30 days, such sale or conveyance is to be of no effect, or void, equity will treat such sale or conveyance as a mere security for the debt, and will allow the debtor a reasonable time beyond such 30 days in which to redeem the land, or will subject the land to sale for the payment for the debt, interest, and expenses of sale.

(Syllabus by the Court.)

Appeal from circuit court, Putnam county; F. A. Guthrie, Judge.

Action by Thomas N. Thacker against F. F. Morris. From a judgment for defendant, plaintiff appeals. Reversed.

J. H. Nash, for appellant.

Greene & Bowzer, for appellee.

DENT, P. Thomas N. Thacker appeals from a decree of the circuit court of Putnam county dismissing his bill against F. F. Morris seeking the right of redemption of a certain tract of 162 3/20 acres of land purchased by Morris at a trustee's sale made under the following circumstances, to wit: On the 5th day of October, 1897, the plaintiff executed a deed of trust on the land to secure the defendant four promissory notes for $50, payable respectively in one, two, three, and four years. The first note becoming due and not being paid, the defendant directed the trustees to advertise the land for sale. They did so, fixing 25th March, 1899, as the day of sale, and the terms at cash sufficient to pay the note then due, interest, and costs, and the residue on credit to meet the three notes not due. On the day of sale, plaintiff went to the defendant, and asked him for further time, and together they both went to see the trustees, when it was agreed, to save further costs, that the terms of sale should be changed to cash in hand, and that defendant should bid in the property for a sufficient amount to cover the indebtedness and expenses of sale, and plaintiff was to have 30 days in which to redeem. Before the end of the 30 days, plaintiff went to defendant, and asked for an extension of time because of his inability to raise the redemption money. This was granted him. Plaintiff claims that the second ex tension agreed upon was to be until September, when he would receive payment of certain notes he held against other parties, and he would be in condition to redeem the land. Morris claims the extension was to be for only 30 days, and that, after the end of the 30 days, plaintiff having failed to pay, he took a deed from the trustees for the land, and sold it to one Harvey for $800. This sale was never consummated because of this litigation. The land was assessed at $3 per acre, or about $489. The evidence appears to indicate that the land was worth at least, on a fair valuation, $750, or three times the amount of the sale price. Some of the witnesses put it as high as $1,500. There is no doubt but what the sale price was inadequate, and that it was fixed by agreement between the parties under the arrangement that plaintiff was to have the right of redemption. The mere form of a sale was gone through with simply because the trustees insisted that it should be done. On the question of the extension of time until September the preponderance of the evidence appears to be plainly...