Sears v. Gilman

Knowlton, C. J. This is a bill to redeem certain real estate conveyed by the plaintiff to his sister, Mrs. Gilman, the principal defendant, who will hereinafter be called the defendant, on July 7, 1868. The deed was absolute in form, and was given for the protection of the defendant from loss by reason of a large indebtedness due her from the plaintiff, which had grown up in connection with his settlement of her uncle’s estate in which she was interested as a devisee, and from his management of her property. She trusted him implicitly, and he acted for her in all matters of business pertaining to her property, without restriction. In her behalf he accepted the deed and had it recorded, giving her no information of it until afterwards. In 1876 he went into bankruptcy, and the master has found that by that time, “ if not before, he had put himself in a position where it was possible for him to make either of two claims, (1) that the conveyance was by way of security, or (2) that it was by way of and had been accepted as payment; and that he left the property in his sister’s possession for nearly thirty years without [392] demanding any account or asserting his right to redeem in an unmistakable manner.” He added, “and so far as it is a question of fact, I find that he has been guilty of loches.” The judge who heard the case upon the master’s original and supplementary reports and the plaintiff’s exceptions thereto decided that the suit could not be maintained, and reported the case to this court. f The decision for the defendant rests principally upon two grounds: first, that before the plaintiff’s bankruptcy in 1876, or about that time, it was understood by both parties that the absolute deed of conveyance from which the plaintiff now seeks to redeem was to be treated as a transfer of the real estate in payment pro tanto of the plaintiff’s indebtedness to the defendant, it being considered that this indebtedness was more than the value of the property; and, secondly, that, if the defendant’s title did not become good as against the plaintiff by virtue of such an understanding, the plaintiff has been guilty of loches in leaving the property in the defendant’s possession without making any claim to it for nearly thirty years, and thereby is precluded from recovery. The defendant is well sustained on both propositions by the master’s findings of fact, and by conclusions of fact of the single justice in dealing with the rulings requested. These findings are justified, if not absolutely required, by the evidence reported. The plaintiff strongly contends that, upon the findings of the master, the deed was at first held merely as security, and that the plaintiff’s right to redeem could not be conveyed or surrendered without an instrument in writing, such as is needed under the statute of frauds for the transfer of interests in real estate. If the original purpose was only to give security and to leave the plaintiff with a right to redemption, this purpose was not expressed in the writing, and it could only be made effectual for the protection of the plaintiff by testimony which would establish an equity in his favor. Where a deed is absolute in form and the equities of the grantor to have it held for security lie only in paroi, these equities may be discharged by a subsequent paroi agreement which leaves the title absolute in accordance with the terms of the deed. Cramer v. Wilson, 202 Ill. 83, 90. Baxter v. Pritchard, 122 Iowa, 590, 591. McMillan v. Jewett, [393] 85 Ala. 476, 481. Stall v. Jones, 47 Neb. 706, 716. Peugh v. Davis, 96 U. S. 332, 337. It is held in this Commonwealth and elsewhere, that even where the writings show a mortgage in the form of an absolute deed accompanied by a separate bond of defeasance, the equity of redemption may be given up by a cancellation or redelivery of the bond, and the true state of the title will be sufficiently shown by the original, absolute deed. Trull v. Skinner, 17 Pick. 213. Palis v. Conway Ins. Co. 7 Allen, 46. West v. Reed, 55 Ill. 242, 245. Haggerty v. Brower, 105 Iowa, 395, 400. Shaw v. Walbridge, 33 Ohio St. 1, 5. Watson v. Edwards, 105 Cal. 70, 76. See Trow v. Berry, 113 Mass. 139, 148. Upon the facts and findings in the present case, the determination of the plaintiff to treat the conveyance as absolute, operating as a payment of his indebtedness to the defendant to the amount of the value of the property, which determination was made known to the defendant and acquiesced in by her, and subsequently acted upon by both for nearly thirty years, was a surrender by the plaintiff of his original right of redemption, which left the defendant with an absolute title. There was an ample consideration for this in the payment pro tanto of his debt to the defendant, which then exceeded the value of the property conveyed. There is no ground for the contention that this surrender of the right of redemption was a fraudulent preference under the bankruptcy act. Upon all the evidence, the right was of no consequence to his creditors because the property was not of sufficient value to pay the debt. There was simply an adjustment of a matter which previously had been left open for adjustment. There is no evidence of an intent to, defraud the plaintiff’s creditors. If this defense were not established, the plaintiff, upon the facts and findings, would be barred by his own loches. Bill dismissed with easts.