Worley v. Dryden

• Decision Date: 31 July 1874
• Citation: 57 Mo. 226
• Parties: EBENZER M. WORLEY, Respondent v. MORGAN DRYDEN, Appellant.
• Court: Missouri Supreme Court

57 Mo. 226

EBENZER M. WORLEY, Respondent

v.MORGAN DRYDEN, Appellant.

Supreme Court of Missouri.

July Term, 1874.

Appeal from Bates Circuit Court.

Bassett & Hicks, for Appellant.

I. There are no averments in the petition of fraud, mistake, surprise or inadequacy of price in making the contract as expressed in the deed, or in the execution of the same. And these are the only cases in which parol evidence is admissible in equity against the contract specified in the deed. (Stephens vs. Cooper, 1 Johns. Ch., 428; Wells vs. Rice, 1 Hill, 602; 6 Hill, 220; Watkins vs. Sockett, 6 Har. J., 444; 1 Sandf. Ch., 38; Parker vs. Vick, 2 Dev. & Battle, 195; Lyons vs. Richmond, 2 Johns. Ch., 57; Salatut vs. Schmidt, 1 Spears E., 421; Greenwood vs. Eldridge, adm'r, 1 Green. C., 165.)

II. The testimony of Worley as to what took place when he delivered the deed to Dryden was incompetent, and no decree could be founded in part or in whole thereon. Neither at law or in equity can parol evidence be received to show that a deed, absolute on its face, was agreed to be, or was a mortgage when the parties intended that the instrument should be in the form in which it is. (Cook vs. Easton, 16 Barb., 429; Webb vs. Rice, 1 Hill, 610.)

III. The parol evidence offered was, at all events, not sufficient to change the deed, absolute on its face, into a mortgage.

In the case of Allen vs. McRea, 4 Ired., 335, Judge Ruffin said: “An absolute deed is not, indeed, conclusive that there was an absolute purchase, but it is almost so, and can only be avoided by some admissions of the defendant in his answer, or by a chain of circumstances that render it almost as certain that it was intended as a security, or if it had been expressed in the deed, such as the disparity between the sum advanced, and the value of the property, the continual possession of the former owner, etc. But there is no case, we believe, in which relief has been given upon mere proofs by witnesses of declarations by the party in opposition to the deed and answer.” (See Aborn vs. Barrett, 2 Blackf., 101.)R. Adams & W. P. Johnson, for Respondent.

A deed, though absolute on its face, if intended and received merely as a security for a debt, is a mortgage. The evidence in this case undoubtedly shows, that the deed made by Worley to Dryden, although absolute on its face, was intended to secure Dryden for the amount advanced to Worley. This is a case in which the intention of the parties and the nature of the transaction between them must be determined not merely from the face of the deed, but by all the circumstances attending the transaction. In order to ascertain the intention of the parties, the court will not only look to the deed and writings, but to all the circumstances of the contract. (See Brant vs. Robertson, 16 Mo., 129; Wilson vs. Drumite, 21 Mo., 325; 4 Kent, 9 Ed., 177-8; Renick vs. Price, 6 Am., 268; Henry vs. Davis, 7 Johns. Ch., 40; Clark vs. Cowan, 2 Cowan, 324; Marks vs. Bell, 1 Johns. Ch., 594; Stevens vs. Stewart, 4 Johns. Ch., 167; Whittock vs. Kane, 4 Paige, 203; Slee vs. Manhattan Co., 1 Paige, 48; Van Barn vs. Olmstead, 5 Paige, 9; Van Barn vs. Russell, 3 Barb., Ch., 325; McIntyre vs. Humphreys, Hoff., 31.)

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in the nature of a bill in equity to have a deed absolute and unconditional on its face, for certain lands lying in Bates County, made by the plaintiff to the defendant, declared a mortgage, and asking that plaintiff might be permitted to redeem.

The petition alleges, that in November, 1858, plaintiff being indebted to defendant in the sum of four hundred and two dollars for money loaned, executed to him a deed for the land therein described; that the deed so made, although absolute on its face, and purporting to convey, unconditionally, all the right, title and interest that the plaintiff had to the land, was only made for the purpose of securing the amount therein specified, of four hundred and two dollars, money loaned by defendant to plaintiff, together with interest thereon, from the time of making and delivering said deed at the rate of ten per cent. per annum, and with the distinct and express understanding and agreement by and between the plaintiff and defendant, that plaintiff should be allowed to redeem the land upon full payment of the indebtedness, and all the interest accrued thereon. There is, then, an averment that in May, 1869, defendant sold to one Speaks, a portion of the land, and that Speaks was an innocent purchaser, having no notice of the claim of the plaintiff, and that he had a good title. The petition then states, that since the execution and delivery of the deed, plaintiff has often and repeatedly offered to pay defendant the indebtedness, with all the interest accrued thereon and all the reasonable expenses that he had incurred, and requested the defendant to accept the same and allow him to redeem the land, but that he refused and fraudulently set up that he was the legal owner of the land, and that plaintiff had no right to redeem. Plaintiff, therefore, prayed that he might be allowed to redeem the land, except that sold; that an account might be taken to ascertain the amount due from plaintiff to defendant after deducting the amount received from Speaks, and that in the adjustment of the account plaintiff should have credit, and be allowed all just sums to which he might be entitled, etc.

Defendant, in his answer, denied that in November, 1858, or at any other time, plaintiff was indebted to him, in the sum of four hundred and two dollars or any other sum of money loaned, or that plaintiff being so indebted to him executed the deed in the petition mentioned, as a mortgage to secure the payment thereof. He denied that the deed so executed and delivered to him by plaintiff, was, at the time the same was delivered, agreed or intended to be a mortgage to secure the payment of money loaned. The answer then averred the fact to be that in November, 1858, plaintiff, in consideration of the sum of money mentioned, granted, bargained and sold to the defendant the land in question, and in pursuance of such sale, executed and delivered to him the deed; that the deed was absolute and unconditional, and was so intended to be by the parties, the terms thereof being in accordance with the bargain and agreement entered into. When the case came on to be heard, the court, upon the pleadings and proofs adduced, decreed that the deed was intended to be a mortgage, being given to secure the payment of money loaned; and from this decree the defendant appealed.

An account was then taken between the parties, and the defendant was allowed for the taxes that he had paid and improvements made on the land, which allowance was decreed to be a lien on the land in his favor, and from this decree the plaintiff also appealed to this court. The main evidence in the case is that given by the parties to the record, the plaintiff and defendant, and they directly contradict each other. The plaintiff swears that the money which he received was a loan, and that he conveyed the land only to secure its payment; that he was to repay the money in either one or two years with interest, and then the defendant was to convey the land back to him. He testifies, that during all the time that intervened between the making of the conveyance and the demand in 1869, in which he was to be permitted to redeem, he wrote but one letter to the defendant on the subject, and that he received no answer to that. He also states that he paid no taxes on the land, and it is fully shown that defendant paid the taxes and exercised ownership over the land from the time it was conveyed to him till the commencement of this suit.

Plaintiff, in addition to his own testimony, introduced witnesses to prove the admissions of the defendant in reference to the transaction. But their evidence, with the exception of that of Mrs. Chaney, was of little or no importance. They had a distant or dim recollection of hearing the defendant say that he had loaned money to plaintiff, and had taken a mortgage on his land for security, but on cross-examination they admitted that they really knew nothing about it. Mrs. Chaney, however, testified, that she had heard defendant say...