Brainerd v. Brainerd

Church, J. We have had doubts whether this bill could be sustained. We are sure that, unless fraud or mistake are sufficiently alleged, there are no other facts set up in it, which are sufficient to sustain it. Upon the whole, a majority of the court believe the bill to be sufficient. The plaintiff states his indebtedness to the defendant, and the defendant’s demand of security from him ; and for the sole purpose of security, and with no other intention by either party, it was agreed between them, that the plaintiff should convey, by an absolute deed, the premises in question to the defendant, and that the defendant should reconvey them, upon the payment of the debt, at any time within one year; and that he would execute and deliver to the plaintiff his bond for such reconveyance. This was essentially an agreement to execute a mortgage, and nothing else. It is also alleged, that the plaintiff executed his deed, as agreed, and left it in the hands of Charles C. Tyler, Esq., to be delivered to the defendant, upon his executing the bond for reconveyance ; that the defendant, with the fraudulent intent to injure the plaintiff and to deprive him of his whole interest in the premises, refused and neglected to execute the bond ; that after-wards, the defendant demanded of the plaintiff an order upon said Tyler for the deed lodged with him, and threatened a suit, if the order was not then given ; that to induce the plaintiff to give the order, he fraudulently and falsely promised the plaintiff, if he would give the order demanded, he would, on receiving the deed from Tyler, execute the bond for recon-veyance, as before agreed ; that by reason of this threat and these representations, the plaintiff gave the order, by means of which, the defendant obtained an absolute deed, instead of the mortgage agreed upon by the parties ; and that the defendant then refused to execute the bond, Here, as we think, an essential fraud is alleged, by means of which the relation of these parties was entirely changed, and the plaintiff, instead of mortgaging his property to the defendant, had sold it without the power of redemption. Again, it is alleged, that afterwards, the defendant privately presented to the plaintiff an agreement already drawn up and ready for signature, and also notes for the amount of said indebtedness; that to induce the plaintiff to execute these papers, the defendant fraudulently and with intent to cheat [585] the plaintiff, represented them to be all right, and the same in legal effect as the former agreement; whereas said new agreement was nothing more than a promise by the defendant to sell the aforesaid premises to the plaintiff, upon condition that the plaintiff should pay said debt within one year; that afterwards the defendant agreed to extend the time for the performance of the new agreement, and on his failure to comply, to pay to the plaintiff fifty dollars, as liquidated dam* ages; and last of all, that soon after the expiration of the extended time of performance, the plaintiff' tendered to the defendant the amount due to him, who received the money» but still refused to execute a reconveyance of the land, and now claims it as his own, by virtue of said absolute deed» thus fraudulently obtained from Tyler. Now, although the charges and allegations of fraud in this bill are not made with usual professional clearness and tech* nical precision, and which, certainly, is at all times desirable, so that the court, as well as the defendant, may apprehend the exact charge to be proved or repelled, and how the fraud charged affects the material facts set forth in the bill; yet the same certainty of allegation, so far as the form of averment is concerned, is not generally as much insisted upon in courts of equity, as in pleadings at common Jaw. By a fair and rational construction of the language employed in this bill, we cannot but see, that the plaintiff has substantially charged a series of fraudulent pretences and practices upon the defendant, by which the plaintiff has ultimately lost his land, though he has paid his debt. We think, therefore, that in this respect, the bill is sufficient; and we should feel very, reluctant, at this stage of the proceedings, and after the cause has progressed so far as to be heard now upon a report of committee, without any demurrer or other objection to the sufficiency of the bill, to turn the plaintiff back to commence his proceedings de novo. Morris v. Nixon’s executors, 1 Howard, 118. The committee have found the facts very nearly as alleged in the bill: and such as were not proved, by written documents, were found upon parol proof, which was objected to by the defendant. And a material question for our consideration upon the report, is, whether such evidence was legally admitted ? [586] That parol evidence is inadmissible to contradict or explain - a written instrument, is a principle so entirely settled, as no longer to be the subject of discussion. And we know of no case of good authority, which recognizes any distinction, in the application of this principle, in the different courts of law and equity. 2 Story’s Eg. 76. 746. Croome v. Lediard, 2 Mylne & Keene 251. And therefore it is, that it has been repeatedly holden, in this state, that an absolute deed cannot be shown, by parol evidence, to be in fact conditional. Reading v. Weston, 8 Conn. R. 117. Benton v. Jones, Id. 186. It is true, in many cases like the present, where the contract was intended to be, and was really, conditional, but has been made, by the fraud of the party, or by mistake of a scrivener, or other mistake or accident, to assume the legal appearance of an absolute one, that such fraud, mistake or accident may be proved by parol; for in no other way can fraud, &c., be proved. Morris v. The executors of Nixon, 1 Howard, 118. And because frauds, &c., are more frequently the subjects of enquiry in courts of equity than at law, it has been sometimes supposed, that different rales of evidence on this subject prevail in the different jurisdictions. Washburn v. Merrills, 1 Day 139. Dean v. Dean, 6 Conn. R. 285. Strong & al. v. Stewart, 4 Johns. Ch. R. 167. Leman v. Whitley, 4 Russell 423. In the state of New-Yorlt the courts have admitted parol evidence, both at law and in equity, to show an absolute deed to be a mortgage. Roach v. Cosine, 9 Wend. 227. Walton v. Cronley’s admr. 14 Wend. 63. Slee v. The Manhattan Co. 1 Paige’s Ch. R. 48. Stuart & al. v. Service, 21 Wend. 37. But from the remarks of the court, in this latter case, as well of the majority, as of the dissenting judge, we believe, that this practice, when applied to cases where neither fraud, accident nor mistake was to be proved, has not been entirely satisfactory to the tribunals of that state ; and has been adopted from some supposed necessity or policy, which we can neither discover nor appreciate. Ring & al. v. Franklin, 2 Hall 1. Birbeck v. Tucker & al. 2 Hall 121. But however this may be, the courts of this state, and, we believe, of all our sister states, agree in receiving parol evidence to prove, that by fraud a contract of mortgage has been converted into an absolute conveyance, and that what [587] ■was really a loan, has been transformed into a sale ; and upon such evidence have granted adequate relief. Such a case a majority of us believe to be sufficiently stated in this plaintiff’s bill ; and of course, that the committee properly admitted parol evidence to support it. Washburn v. Merills, 1 Day 139. Dean v. Dean, 6 Conn. R. 285. Strong & al. v. Stewart, 4 Johns. Ch. R. 167. Clark v. Henry, 6 Johns. Ch. R. 324. Dunham v. Dey, 15 Johns. R. 555. 1 Howard, 118. As it appears from the report of the committee, that the sole consideration of the plaintiff’s deed to the defendant, was the debt due by the former to the latter ; and that this debt has been paid and satisfied, and that the defendant now holds the land only for the plaintiff; he ought to be ordered to re-convey it, as well as to pay the costs of this proceeding; and so we shall advise the superior court. In this opinion the other Judges concurred, except Williams, Ch. J., who, if he did not explicitly dissent, hesitated to give his assent.' Decree for plaintiff.