Todd v. Campbell et al.

• Decision Date: 01 January 1858
• Citation: 32 Pa. 250
• Parties: Todd versus Campbell et al.
• Court: Pennsylvania Supreme Court

32 Pa. 250

Todd versus Campbell et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Westmoreland county.

Cowan & Coulter, for the plaintiff in error.

Foster & Todd, for the defendants in error.

The opinion of the court was delivered by STRONG, J.

The plaintiffs below are seeking to recover the land against a deed of their ancestor, absolute on its face. They allege no fraud or mistake, but claim that the deed, though apparently indefeasible, was in truth a mortgage. Its alleged defeasibility they attempt to prove by no written instrument, but wholly by parol evidence. It is undeniable that a deed, absolute on its face, may be shown to be a mortgage by such evidence, though a mortgage may not thus be shown to be a sale. The reason is said to be, that the evidence in the one case neither contradicts, adds to, nor alters the instrument, while in the other it does. Were it an open question, it might perhaps be shown that there is no substantial difference in this respect in the two cases. Nor is it easy to perceive why giving effect to such evidence is not in conflict with the statute of frauds, the purpose of which was to compel written evidence of all title to lands. But the discussion is not a practical one. The question is nowhere open. A grantor may show by parol that a deed which purports to be a conveyance is in reality but a security for a debt or a liability. If the plaintiffs have proved the deed from William Campbell to John Campbell to be such, they are entitled to the verdict which they have obtained. Their whole case is an equitable one. They claim as mortgagors seeking to redeem. Their action, therefore, though in form an ejectment, is in substance a bill in equity, brought by the heirs of a mortgagor against a mortgagee in possession, to compel a reconveyance of the land. The principles of adjudication, applicable to the latter form of proceeding, must equally control in this ejectment.

The administration of both legal and equitable principles through the medium of legal forms, which has so long prevailed in this state, has given rise to some mistaken impressions. There are not a few cases in which, in a common law proceeding, a plaintiff sets up a simple equity; and with equal frequency, an equity is the sole defence. The principle, however, does not change, because it is applied in a strange forum, and in a new form of proceeding. It has sometimes been thought, that when an equitable case is to be adjudicated in a tribunal composed of both a judge and a jury, the latter are to determine what the equities between the parties are. This is a mistake. The judge alone is the chancellor. The province of the jury is to aid him in ascertaining the facts out of which the equities arise. If the facts are not disputed, he is to declare their effect and determine whether the claim or the defence is well founded. A chancellor is judge both of the equity and of the facts. It is in his discretion whether he will send an issue to a jury. And if he does, their verdict is only advisory. It is not conclusive upon him. Whenever, therefore, upon the trial of an ejectment founded upon an equitable title, the court is of opinion that the facts proved do not make out a case in which a chancellor would decree a conveyance, it is their duty to give binding instructions to that effect to the jury. The responsibility belongs to the judge, and he may not throw it off upon those whose only duty is to aid him in ascertaining disputed facts. This view of the peculiar duties of the judge and jury was very clearly presented and maintained in Moore v. Small, 7 Harris 461, and in strict accordance with it has been the ruling of this court in numerous cases. Thus, when a party has attempted to set up an equity under a parol sale and part performance, it has been held to be the duty of the court to reject the evidence of a verbal contract, if, being taken as true, it fails to make out such a case as is entitled to stand as an exception to the statute of frauds: Poorman v. Kilgore, 2 Casey 371-2, and cases there cited; Rankin v. Simpson, 7 Harris 471; Brawdy v. Brawdy, 7 Barr 157. In the latter case, the judge in the court below heard the evidence, and then directed a verdict against the alleged equitable title, saying that he decided the case as upon a demurrer to the evidence. This court affirmed the judgment, and Chief Justice GIBSON, in delivering the opinion, declared that such a case must be proved to the entire satisfaction not only of the jury, but of the chancellor also. He denied that the jurors are uncontrolled arbiters of the facts, and averred that it was proper to indicate beforehand the measure of proof a chancellor would require, and if it did not exist, to take the cause from the jury. A similar rule in cases of resulting trust, was shadowed forth in Strimpfler v. Roberts, 6 Harris 283. We are aware that this is no light duty which the judge is called to perform. It would be much easier to devolve the whole burden upon the jury, but this may not be done.

If, then, the evidence submitted to the jury in this case, was not such as would have moved a chancellor to decree a reconveyance by John Campbell's heirs to the plaintiffs, the jury should have been directed to return a verdict for the defendants; and whether it was sufficient thus to move him, the court was to judge. This necessarily leads us to an examination of the facts as presented.

It may be premised, that as the plaintiffs set up a title against a deed of their ancestor absolute in its terms, the burden of proof is upon them. The presumption is, that the deed is what it purports to be, and that the parties expressed by it their entire intentions. It is also well settled, that when parol proof is relied upon to show that a deed absolute in form was intended as a mortgage, it must be clear and convincing. Generally, the cases go so far as to hold, that the intention of the parties that it was to be a mortgage and not a conveyance, must be established by proof, not merely of declarations, but of facts and circumstances, outside of the deed, inconsistent with the idea of an absolute purchase: Glisson v. Hill, 2 Jones Eq. 256; Kelly v. Bryan, 6 Iredell Eq. 283; Blackwell v. Overby, Id. 38; Bryan v. Cowart, 21 Ala. 92. See also a large collection of cases in Hare & Wallace's notes to Lead. Cas. Eq. vol. 2, part 2, p. 436. So, it would seem, that when a parol defeasance is set up, it should not only be proved to exist, but its terms should also be established, else there could be no decree of foreclosure or redemption.

There is in this case no direct proof that the deed was intended to operate merely as a security for a debt. William Campbell, the grantor, was largely indebted to his brother John, the grantee. How much that indebtedness was, the evidence does not establish. Elias Porter testified that he heard John say, that William owed him twenty-seven or at most twenty-eight hundred dollars. Hugh Campbell, a brother who was present at the execution of the deed, states that it was the understanding of the parties at the time, that William owed John the five thousand dollars which was the consideration mentioned in it. There is also other evidence in the case tending strongly to show that the indebtedness was at least $5000, and...