Ennor v. Thompson

Mr. Justice Walker delivered the opinion of the court: The court below committed no error in suppressing the deposition of Henry C. Park. By. that deposition, appellant attempted to amend a defective acknowledgment to the deed of trust executed by appellee, for the premises in controversy, to appellant. It is an attempt to prove by parol what appellee’s wife did acknowledge when she was before the justice of the peace, outside of the certificate attached to the deed. The statute has required, that all that is essential to an acknowledgment shall appear in the certificate, to bar the wife’s dower, and such is the construction given to the homestead act. This acknowledgment cannot rest partly in writing and partly in parol; it must all be in writing. It is so required to protect the wife in her rights. The statute has declared, that in this mode, and this alone, can the wife bar her rights. Otir statute, has adopted this as a more convenient mode than that provided by the common law, which required that the acknowledgment should be made in open court by fine or recovery, and it always became a matter of record. And the certificate of acknowledgment has taken its place, and like it, is required to be reduced to writing, and certified under the hand of the officer. We know of no case, in practice or reported, which has held that a defective certificate of acknowledgment may be aided by parol. This preliminary question disposed of, we now come to the merits of the case. Whatever may have been the condition of the indebtedness from appellee to appellant, prior to the 22nd of February, 1864, or whatever may have previously been the amount which constituted the consideration, we regard as unimportant to the decision of this case. On that day a new arrangement was entered into by the parties. Appellee conveyed the land by a deed, absolute in terms, to appellant, and he gave back an obligation to re-convey upon the payment by appellee of the sum of eight hundred and fifty dollars, in American gold, by the first of the ensuing FTovember. This, •to our minds, is very clear and satisfactory evidence that this sum covered all indebtedness at that time, operating as a lien on the premises. It is urged, that this sum did not embrace the amounts secured by the other deeds of trust, and the decree is for too small a sum, even if the deed is to be treated as a mortgage. When it is remembered that this deed is for the same land on which the other securities existed, and that when this deed was executed, appellant gave an obligation to re-convey the land to appellee, if he should pay to him, by the first day of the next November, eight hundred and fifty dollars in American gold, the conclusion is almost irresistible, that it covered all of the indebtedness. Had this not embraced the entire indebtedness, we cannot believe, from appellant’s previous course, in always taking security, that he would have agreed to re-convey the land, and thus have relinquished all liens, for money not embraced in that sum. Again, the justice who drew the deed, understood the sum specified in it to embrace all of the indebtedness, and we do not see that this presumption has been rebutted. The parties having thus ascertained that sum to be due, and no sufficient evidence appearing to require it, we regard it unimportant to state the account to ascertain how that was determined to be the correct amount. . Having determined that this was the amount then due,, the next question presented is, whether the conveyance then made operated as a satisfaction of the debt, and absolutely passed the title to appellant. The previous deeds of trust on the same land, and to secure the same indebtedness, were in effect but mortgages, and are so .treated in equity. And it is a rule of equity, that once a mortgage, always a mortgage, until the equity of redemption is foreclosed or barred. Then did this transaction change the relations of the parties, or did the deed of February, 1864, although an absolute conveyance, in form, only operate in fact, and equitably, as a mortgage 1 When the mortgagor has conveyed the mortgaged premises to the mortgagee, it only operates as a bar to the equity of redemption, when it' clearly and unequivocally aj)pears that both parties so understood and intended it should. Otherwise, it will only be regarded as a mere change in the form of the security. The justice of the peace who drew the deed, testifies that appellant came to him and stated that appellee was indebted to him on one or two deeds of trust, and that the amounts secured by those deeds of trust formed the consideration of the deed of February, 1864. That appellant said at the time that appellee was hard pressed, and was going to Idaho to get money to redeem,and he wanted the matter in such shape as to be safe, and not to have to purchase the lánd; that when appellee came back, he should have it if he was able to pay for it. He says that he supposed this deed covered the whole indebtedness, but that appellant might have spoken of another deed of trust; but he says he was certain that appellant spoke of the deed as a security. This evidence is strong to the effect that appellant only intended the transaction as a security for the debt. Again, this evidence is greatly strengthened by that of James, who testified that appellant told him, in the early part bf the summer of 1864, that appellee owed him §800, or §850—he thinks the latter sum. That he said he had a deed for appellee’s farm, and if he did not pay it soon, he would claim the place. Emma Thompson testified that appellant stated to their family that the interest was paid till ¡November, 1864, in advance. This evidence can hardly leave a doubt that it was intended as a security, and that the rent was intended as interest on the debt. Independent of this evidence, there seems to be another circumstance which gives character to the transaction, and that is, that apppellee’s notes were not canceled or surrendered to him. If appellant intended to render his title absolute, and to satisfy the debt, wfiy retain the notes as evidence of the debt ? Had such been intended, he would, unquestionar bly, have surrendered them, or satisfactorily accounted for a failure to cancel them. In Sutphen v. Cushman, 35 Ill. 186, it was held, that the retaining the evidence of the indebted-lie 35, after receiving a deed, .absolute in terms, of the mortgaged premises, giving back a lease to the grantor and receiving rents, characterize the transaction a mortgage. That case is decisive of this, on this question. . By the arrangement of the 22d day of February, 1864, the indebtedness then due to the appellant was $850, payable to him on the first of November following, as he states in his obligation to re-convey to appellee. And this obligation was written on the back of a receipt for $100, for all rents due up to that time. And we find that the lease was renewed on that date, on the same terms that .were contained in the lease. The receipt specified that appellee was to surrender possession on the first of November, or pay the next year’s rent in advance. The amount of the rent was fixed by the lease at $100 a year. We may, therefore, safely infer that the rent was paid in advance for the year 1864, and that it was the same in amount. Then, if the interest should be computed at six per cent., arid as the obligation to re-convey does not specify any rate of interest, it shorild only bear that rate, we will find that the decree is for too large an amount, when this $100, paid on the first of November, 1864, is deducted. And if interest were computed on the principal sum at ten per cent., the decree would be too small by but a few dollars. There was, therefore, no error of which appellant can complain in stating the account. Nor does it matter that the court below may have made the computation on a different basis. Defendants Green and Fiddick each held deeds of trust on this land, which were satisfied and discharged by the deed to appellant, and they were a cloud upon the title. When the sums were discharged, to secure which they were executed, it became the duty of the trustees to re-convey the property to appellee; and if they failed or refused to comply with the decree requiring them to re-convey, it was no more than just that they should be required to pay the cost of. a re-conveyance by the master. If desirous of avoiding the expense, it was only necessary for them to comply with the decree. There was no error in this, even if a writ of error could be prosecuted on a decree for costs of this character. The fifteenth section of chapter entitled “Costs,” declares that where the complainant shall dismiss his bill, or the defendant shall dismiss it for want of prosecution, the defendant shall recover full costs against complainant; but in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not, to the parties. In this case, complainant’s bill was not dismissed, and hence the court had the discretion to award costs as he should deem proper, and having exercised that discretion it is not subject to be reviewed. A fair construction of this decree only requires appellant and appellee each to pay one-half of the costs, in case the appellee should pay the money into court, as required by the decree; but failing in that, appellee’s bill was ordered to stand dismissed, and in that event no provision was made as to costs, and a further decree would have been necessary, finding that appellee had made default, and that his bill be dismissed at his costs. Although the order was made that the bill should be dismissed if the money was not paid, yet the clerk could not find that fact in vacation. It could only be determined by the chancelor when acting as a court, at the next or some subsequent term. At the next term the default might have been contested, and appellee might have shown ground excusing the non-payment of the money so as to have avoided a dismissal, which was only conditional. The case would not have passed from the docket on the failure to pay the money, under this decree, but would have awaited the further order of the court. The decree of the court below must be affirmed. Decree affirmed.