Wilson v. Drumrite

• Decision Date: 31 July 1855
• Parties: WILSON, Appellant, v. DRUMRITE & VAUGHN, Respondents.
• Court: Missouri Supreme Court

21 Mo. 325

WILSON, Appellant,

v.DRUMRITE & VAUGHN, Respondents.

Supreme Court of Missouri.

July Term, 1855.

1. Every conveyance, intended as a security for money, is a mortgage, and no agreement of the parties at the time can take away or limit the right of redemption.

2. W. by deed absolute on its face, conveyed land to D. as security for the price of the land warrant. There was a verbal agreement that D. should reconvey if the money was paid by a specified day; but if not, the land was to be his, and he was to sell the same to get his pay. The money not being paid within the time limited, D. conveyed a portion of the land to a purchaser for value, without notice. In a suit by W. to redeem, held that the conveyance was a mortgage, and that D. could be compelled to account for the value of the land sold, and reconvey the residue.

(SCOTT, J., dissenting, holding that the transaction was a mortgage with power of sale, and W. was only entitled to a reconveyance of the land unsold.)

Appeal from Greene Circuit Court.

This was a suit brought by Wilson against Drumrite & Vaughn, the object of which was to redeem two hundred acres of land held under a conveyance from the plaintiff to Drumrite, purporting to be absolute, but claimed by the plaintiff to have been intended as a mortgage. The defendant, Vaughn, held one hundred and twenty acres under a deed from Drumrite, but was alleged to have purchased with notice of the plaintiff's equity.

The petition stated that, in 1849, Drumrite sold a land warrant to the plaintiff at the price of $125, to secure the payment of which, plaintiff conveyed to Drumrite the 160 acres, upon which he located the warrant, and also another forty acre tract owned by him, the whole being the land in controversy.

The defendants, in their answer, admitted the sale of the warrant, but denied that the subsequent conveyance was made as a security for the price, or was intended as a mortgage. They stated that plaintiff proposed to give Drumrite a mortgage, but he refused to accept it. They stated the facts to be, that upon the negotiation for the purchase of the warrant, plaintiff agreed to convey to Drumrite the land upon which it was located and the other tract, if Drumrite would verbally agree to reconvey upon payment of the price of the warrant, at the time agreed upon, viz: Fifty dollars in six weeks, from the date of the entry, and seventy-five dollars by the first of March, 1850, and, if plaintiff did not pay according to contract, the whole of the land should be Drumrite's and he should sell any or all of it to pay himself for his warrant and trouble; that Drumrite assented, and under this agreement transferred the warrant and received the conveyance; that plaintiff failed to pay when the money became due, and that afterwards Drumrite sold three of the tracts to Vaughn for $140, which, together with twenty dollars received from the plaintiff, he conceived would compensate him for the warrant, and his trouble and expenses; and that he had offered to reconvey to plaintiff the remaining eighty acres, but plaintiff had refused to receive a conveyance. The defendant, Vaughn, denied any notice of the plaintiff's equity, and alleged that he purchased in good faith and for value; and the jury, in a special verdict upon issues submitted by the court, of which this was one, found such to be the fact.

Upon the special finding of the jury upon the issues submitted, (one of which was whether the conveyance was intended as a mortgage,) the Circuit Court rendered a judgment for the defendants, from which the plaintiff appealed.

J. M. Richardson argued the case for the appellant, but his brief is not found on file.

Wright & Price, for respondents.

1. The conveyance being absolute on its face, it was a question of fact for a jury whether it was intended as a mortgage, and they having found that it was not, this court will not disturb the finding. (16 Mo. Rep. 129-240.) 2. The most favorable light in which the transaction can be regarded for the plaintiff is, that it was a conditional sale; and having failed to pay at the time agreed upon, his conditional right ceased. The payment was optional with Wilson. In a mortgage, there is an obligation to pay. (1 Call's Rep. 244. 7 Cranch, 218.7 Conn. 143. Powell on Mort. 173. 1 Madd. Ch. 516. 1 Vernon, 268.) 3. Even if the conveyance is to be regarded as a mortgage, Vaughn is not affected by it, as the jury found that he was a purchaser in good faith without notice. (2 Sumner, 234.) 4. The petition contained no equity. The land on which the warrant was located belonged to Drumrite until he was paid for the warrant. He only sold a part of the land for the purpose of making his money, and offered to reconvey the entire balance. The equity of redemption was attached to mortgages on account of the hardships of the law, and equity will not interfere when injustice may be done the mortgagee. (1 J. J. Marsh. 344. 5 Eng. Cond. Ch. Rep. 268.) 5. A deed absolute on its face cannot be shown to be a mortgage in the absence of fraud, accident or mistake. (2 Story's Eq. § 1018.)

LEONARD, Judge, delivered the opinion of the court.

1. In Hargrave and Butler's notes on Coke's First Institute, (205, a, Note 96, Book 3,) it is said: “It may be laid down generally, and subject to very few exceptions, that, wherever a conveyance or assignment of an estate is originally intended as a security for money, whether this intention appear...