Plumer v. Guthrie

Mr. Justice Mercur delivered the opinion of the court, January 4th 1875. That a deed, absolute on its face, may be shown by parol to be a mortgage only, between the parties, is too well established to require a citation of authorities. The proof, however, of the agreement necessary to so change its character must be clear, explicit [456] and unequivocal. It should not rest on the subsequent admissions and declarations of the alleged mortgagee only, but must establish an agreement substantially contemporaneous with the execution and delivery of the deed. Less than this would not only conflict with the rules of evidence which prescribe the manner in which a written instrument may be changed by parol, but also defeat the wise provisions of the Statute of Frauds. On and before the 8th of May 1857, the defendant was the owner of the lands in question. On that day all his title therein was divested by a sheriff’s sale. There was no agreement by which the defendant was to retain or acquire any equities therein. The purchasers took a clear and unquestionable title. By means of subsequent conveyances and devise this title was regularly transmitted to the plaintiff. The plaintiff further proved that nearly seven years after the land was conveyed to her devisor, and while he held it, the defendant entered into a written lease with him for these lands for the term of one year, in consideration of the defendant’s agreeing to- pay $100 and one-third of all the hay and grain produced on the premises, to pay all taxes, to cut no timber, and to surrender possession, &c. Thus the plaintiff showed a clear paper title. The defendant sought to convert the deed given to the plaintiff’s devisor into a mortgage by an alleged parol agreement. The first assignment of error is to the admission of certain parts of the deposition of Samuel M. Lane. He was one of the purchasers at sheriff's sale, and after acquiring the estate of his co-tenants, conveyed to Arnold’Plumer, under whom the plaintiff now claims. The portion of the deposition admitted under exception relates to conversations and negotiations between the defendant and the witness. They were not in the presence of the plaintiff’s devisor. They were not proven to have ever been communicated to him. They occurred some ten months prior to the execution and delivery to him of the deed. They cannot therefore form any part of the res gestee. It was, then, manifestly wrong to admit. the declarations of the defendant and negotiations between him and the witness, not communicated to the devisor of the plaintiff. This assignment is sustained. The second assignment is not according to the rules and must be disregarded. The third and fourth were not pressed. We discover no error in the fifth and eighth assignments. We think the answers of the learned judge were correct; but a failure to connect these transactions with Plumer’s purchase of the land make them irrelevant. The eleventh assignment relates to the effect which should be given to the lease executed between Plumer and the defendant. The. point submitted by the defendant and the qualified affirmance thereof by the court, seems to declare that no greater effect [457] shall be given to the lease than as evidence, indicating the nature and design of the original contract between the parties, and their intention in making it. In so restricting its effect to that particular time, we think the court erred. There was no evidence of any fraud or imposition in procuring the lease. Hence if it was admitted that Plumer originally acquired the title in trust for the defendant, yet inasmuch as this lease was executed so many years thereafter, it was at least evidence of the termination of that trust and the abandonment by the defendant of all interest in the land other than that of lessee. The remaining assignments may be considered together. The defendant seeks by oral testimony to convert into a mortgage, a deed absolute on its face. To do this he must prove a contract to that effect: Rankin v. Simpson, 7 Harris 471. It was, however, said in Rhines et al. v. Baird, 5 Wright 256, that the agreement need not be express, but it may be inferred from facts and circumstances inconsistent with its being an absolute conveyance. We will add, that knowledge of those facts and circumstances must be brought home to the owner of the legal title before he shall be affected thereby. A careful examination of the evidence fails to show any conversation between the defendant and Plumer in relation to the latter’s purchasing or taking a conveyance of the land for his benefit. None such is shown to have either preceded, or to have been cotemporaneous with, the execution of the deed. The parties to the alleged agreement were never brought face to face. ■ No communication either verbal or written ever passed between them indicating it was a mortgage, although Plumer lived ten years after he procured the conveyance. The defendant however relies mainly on facts and circumstances shown, after this great lapse of time, and after the death of Plumer, to prove the conveyance was a mortgage only. Such testimony should be received with caution. When received, if it fails to satisfy the court as well as the jury — if it does not make out a case in which a chancellor would decree a conveyance, it should not be submitted to the jury: Rankin v. Simpson, supra; Todd v. Campbell et al., 8 Casey 250; DeFrance et al. v. DeFranee et al., 10 Casey 385; Bennett et ux. v. Fulmer, 13 Wright 155; McGinity v. McGinity, 13 P. F. Smith 38. The defendant showed there were other large and unsettled business transactions between him and Plumer. He claims that the latter was, at the time of the conveyance, indebted to him in an amount equal to the $9000 which he paid for the land, or if not, that it was a loan by Plumer to him. Ho settlement of those transactions was ever made by the parties. It is not shown that Plumer admitted the existence of such an indebtedness, or of any indebtedness, or that the $9000 was a loan. It is true, Lane thinks, but will not be certain, that about a year before the con [458] veyance to Plumer, the latter said the defendant wanted him to get this property for him, the defendant. Nothing however was said at the time of the conveyance to Plumer by any one indi-, eating any such purpose. The fact that a jury may now find that if a settlement had been made between the defendant and Plumer at the time of the conveyance, the latter would'have fallen in debt to the former, or that at Plumer’s death he was indebted to the defendant in other business transactions, is insufficient of itself to prove that he accepted the conveyance as a mortgage. Nor does the fact that the defendant, unknown to Plumer, paid Lane $500 change the character of the written instrument. It cannot with any show of reason be said that the action of Plumer was influenced by the acts of others of which he had no notice. The burden of proof rests on the defendant.' It will not do to establish a mere dim probability only of the correctness of his theory. He must go further and make the proof clear and explicit. If such proof had been given of an agreement at the execution of the deed, then the testimony of F. B. Guthrie would have been strong evidence of its continuance, and of the- payment of the money. All his testimony as to Plumer’s declarations made after he procured the deed, fails to establish a previous agreement. Neither in the conversation had in 1853, before the execution of-the lease, nor in 1867, when the defendant was in possession under it, did Plumer admit that he had accepted the deed as a mortgage. He admitted a present willingness or intention to convey at some future time, from which it is claimed a legal inference may be drawn that he had so agreed many years before. Such effect cannot be given to his declarations. It would be fraught with great mischief and injustice. Every unexecuted intention of making a gift of real estate might be distorted into a previous valid agreement, and the Statute of Frauds be defeated. It will not do to permit a legal title in the hands of an heir or devisee to be destroyed by such vague and uncertain testimony; neither doubt, nor suspicion, nor uncertainty, nor all of them in regard to the circumstances under which the ancestor or devisor acquired title to the property, will convert it into a mortgage. As lands become more Valuable the temptation to commit fraud and perjury will be increased. Hence the requirement of clear and explicit evidence of the alleged agreement should not be relaxed. We think, therefore, under the evidence, the assignments are substantially-sustained. As the case goes back for another trial we will suggest that while counsel can understand the learned judge where he combines the points submitted by each plaintiff and defendant and gives them a blended answer, it may be questioned whether the answer is made clear to the mind of the common juror. Judgment reversed, and a venire facias de novo awarded.