Wilson v. . Fisher

CoNNOR, J. We are of the opinion that, if there had been any controverted allegations of fact, the more orderly course of procedure would have dictated to plaintiffs to note their exception and await the verdict under the instruction of the court, noting exceptions as they may have been advised. By declining the instruction asked his Honor did not intimate, that they could not recover, thereby driving them to elect whether they would submit to a nonsuit or have g judgment against them. Lt may be that his Honor was of the opinion that the legal character of the instruction was dependent upon the intention of the parties, which was a fact to be found by the jury. However, as we differ with his Honor upon the construction of the deed, there was nothing to be submitted to the jury. In our opinion, the deed was upon its face a mortgage, with a provision cutting off the equity of redemption by the payment of $50 by the mortgagee, if the debt of $100 was not paid at maturity. There was au absolute conveyance, with a well-defined, unmistakable clause of de-feasance, entitling the grantor to defeat the deed by paying the amount loaned. Rut for the marginal addition, no question could have arisen respecting the character of the, deed or the. rights of the patties to it. There being no power of sale, the. only method by which the equity of redemption could have been foreclosed was by a civil action in the nature of a bill in equity, followed by a judgment giving the mortgagor a reasonable time within which to redeem, and, upon failure, to do so, to direct a sale of the property in accordance with the course and practice of the court. The testimony of Fisher *539 and Marshburn sliows that the real transaction was a loan of money, secured by a conveyance of the land, with a right to redeem by paying the “amount inserted” — $100. Hopkins on Real Property, p. 186; Wilson v. Weston, 57 N. C., 350. In Robinson v. Willoughby, 65 N. C., 520, Rodman, J., says: “A mortgage- is a conveyance by a debtor to his creditor, or to some one in trust for him, as a security for the debt. Whatever is substantially this is held to be a mortgage in a court of equity, and the debtor has a right to redeem.” The same learned Judge says: “In the present case the express terms of the writing indicate a mortgage, and the circumstances do not contradict, but sustain this view.” This language is peculiarly applicable to this appeal. The plaintiff was in debt; he1 was trying to borrow money. Fisher says: “Wilson had been to me to borrow money. 1 told him that I would give him twelve months to redeem the land.” All of the testimony sustains the construction of the deed as a mortgage ; it was so understood and intended by the parties. Bunn v. Braswell, 139 N. C., 135. The marginal addition, with equal clearness, shows that the parties undertook to add to the relation of mortgagor and mortgagee an agreement on the part of Wilson to sell his equity of redemption, in the event he did not pay the debt, for $50. This, for manifest reasons, the courts have1 uniformly refused to enforce. “If the transaction be a mortgage in substance, the most solemn engagement to the contrary, made at the time, cannot deprive the debtor of his right to redeem; such a case being, on grounds of equity, an exception to the maxim Modus et conventio vicunt legere. Nor can a mortgagor, by any agreement at the time of the execution of the mortgage that the right to redeem shall be lost if the money be not paid by a certain clay, debar himself of such right.” Robinson v. Willoughby, supra. This Court, following an unbroken line of decisions in England and this country,-has uniformly held that an agreement made at the time of the execution of the mortgage to surrender the equity *540 of redemption for a -fixed amount is invalid. '' Tbe maxim, “Once a mortgage, always a mortgage/’ is too deeply rooted in our jurisprudence to be brought into controversy. Ruffin, J.j in Poindexter v. McCannon, 16 N. C., 377, says that when upon the face of the instrument it is doubtful whether a transaction is a conditional sale or a mortgage, the “court will lean to considering it a mortgage,” and will look to the “acts of the parties and the circumstances attending the transaction. When it is once determined to be a mortgage, all the consequences of account, redemption and the like follow, notwithstanding any stipulation to the contrary; for the power of redemption is not lost by any hard conditions, nor shall it be fettered to any point of time not according to the course of the court. This is well expressed by the familiar maxim, ‘Once a mortgage, always a mortgage.’ ” It is well settled, upon sound equitable principles, that contracts made at the time the mortgage is executed, restricting the right to redeem, are void. “When- one borrows money upon the security of his property, he is not allowed by any form of words to preclude himself from redeeming.” Jones on Mortgages, 25.1. It is said: “A man shall not have interest on his money, and a collateral advantage besides for the loan of it, or clog the redemption with any by-agreement.” Comyns v. Comyns, 5 Irish Eq., 583. In Broad v. Self, 9 Jur. N. S., 885, it is held “that a mortgagee cannot at the time he advances his money stipulate for. his advantage that not strictly belonging to his contract of mortgage.” We are of the opinion (1) that the deed is upon its face a mortgage; (2) that, taking the defendant’s evidence to be true, the transaction was a loan of money to be secured by mortgage; (3) that the attempt to fix a price upon the équity of redemption and retain to the mortgagee the power to deprive the mortgagor of the right to redeem by paying the amount stipulated was void. Ilis Honor was, therefore, in error in refusing either of plaintiffs’ motions. There should be judgment directing a decree per *541 mitting plaintiff to redeem upon paying the amount due, including the $50, with interest at 6 per cent., less reasonable rent. "While it is the general rule that a mortgagor in, possession is not entitled to pay for improvements, we are of the opinion that, as the plaintiffs in this action, are asking equitable relief, after so long a time they should account in diminution of rents for such enhancement in value of the property as may be found by reason of permanent improvements put thereon by defendants. There should be a reference to state an account between the parties,-upon the principle indicated in this opinion. Let this be certified to the Superior Court of Pender. Error.