John's Appeal

Mr. Justice Sterbett delivered the opinion of the court, March 26th 1883. The controlling question in this case is whether the agreement of February 1st 1869, between appellant and her husband Carl Gottfried John, one of the appellees, is a mortgage, or, as it purports to be, a contract of sale by him to her of the property therein described, reserving to himself [65] the privilege of repurchasing the same in case he survives her. There is no evidence dehors the instrument itself, and hence the intention of the parties must be determined by it alone. The agreement is sui generis, evidently written by some one unacquainted with our forms of conveyancing; but the language employed is such as to leave no room to doubt that it was designed to transfer to "the wife all the right, title, interest and claim of the husband in and to the estate of his deceased brother. It is asserted in the first sentence that the parties “ have agreed upon the following contract concerning the sale of a certain inheritance.” Then, in connection with a full description of the so-called “ inheritance,” the husband declares he doth “ hereby in consideration of the sum of five hundred thalers, the amount mutually agreed upon, cede and transfer ” the same to his wife. Following this is a clause which provides that whatever he has “ received from the substance of the estate, &c., is to be excluded from said sale,” and that “ all the charges and profits of the estate from the present time do pass over to the said Mrs. John.” The concluding portion of* the agreement contains the following clause: “ The purchase-money of five hundred thalers has been duly paid by the said Mrs. John, which is hereby acknowledged. Ownership and risks of inheritance, as well as of the several objects of inheritance, do pass over into the possession of the purchaser, and the same does hereby acknowledge that the surrender of the inheritance and of the several objects inherited, as far as is required by the laws of the state of Pennsylvania, has actually taken place.” These and other expressions are clearly indicative of a bona fide sale. The only expression in the agreement, that in the slightest degree favors the idea that it may have been intended as security for a loan, occurs in the clause reserving to the husband “ the privilege of repurchasing the said inheritance hereby sold, ... in case he should survive his wife.” The reservation thus made is upon a contingency that may never happen, and the intention evidently was that if he pre-deceased his wife, the property should then be absolutely and unconditionally hers; but, if she died first, he should have the right, as against her heirs, of repurchasing the property for the same consideration she gave for it. This is' still more clearly shown by the provision which immediately follows the reservation : “ In case the said Carl Gottfried John shall make use of the privilege, then the heirs of said Mrs. John, his wife, shall not be entitled to claim the purchase-money of five hundred thalers until the whole estate, and particularly the buildings and drug-store, have been sold.” It is very evident that in any contingency, as against him, she acquired a life [66] estate in the property. This appears to be the 'plain and obvious meaning of the agreement; and there is nothing in the language employed, or in the relation of -the parties, that will justify any other construction. Bearing in mind that this is a conveyance by husband to wife, executed at a time when the former had no creditors to question the bona tides of the transaction, we are not at liberty to take as our guide, in its interpretation, the construction which courts are always disposed to. put upon conditional contracts or conveyances, especially where there is the slightest evidence that security was the object intended. Conveyances between husband and wife are not subject to the ordinary policy of the law which prevents the enforcement of agreements in restraint of the right of redemption reserved by debtors against ordinary creditors to whom conveyances have been made simply as security; and hence there is no reason why the contract in question should be construed favorably to the husband. On the contrary, it should be construed most strongly against him. Such conveyances are so far encouraged that gross inadequacy of price does not tend to impair their validity. In the absence of adequate consideration it will be presumed, as between husband and wife, that some bounty was intended. We think therefore that the learned judges of the Orphans’ Court erred in holding that the agreement, under which appellant claimed to participate in the distribution, was a mortgage and not a conveyance or agreement to convey the husband’s interest in his brother’s estate. Decree reversed at the costs of the appellee, and record remitted with instructions to distribute the fund in accordance with this opinion.