Kellogg v. Northrup

Grant, J. Declaration in assumpsit upon the common counts. Bill of particulars, balance due on sale of house and lot December 29, 1891. Plea, the general issue. The defense was that the deed was a mortgage. The court instructed the jury that the burden of proof was upon the plaintiff to establish the character of the deed. The learned circuit judge was in error. The onus probandi is upon him who asserts that a written instrument is not what it imports upon its face to be. A deed may be shown to be a mortgage. McMillan v. Bissell, 63 Mich. 66. While the court in that case were equally divided as to the effect of the proofs, all' the justices agreed that a deed absolute upon its face may be shown to be defeasible by parol upon adequate proof. Justice Sherwood recognized the rule that in such case the proofs must be clear and convincing, and said, “Something more than a bare preponderance of proof should be [328] required to change the character of the instrument expressed upon its face.” Chief Justice Campbell stated that that was one of the very few cases where an attempt was made on the part of the grantee to declare the deed defeasible, and said, “It ought not to be done without entirely satisfactory proof.” Undoubtedly, either a grantor or a grantee may establish the defeasible character of the instrument. Such suits usually arise in courts of equity, either on the part of the grantor to redeem, or upon the part of the grantee to declare the deed a mortgage, and to foreclose. In either case the onus is upon him who seeks to change its character. The same rule applies in courts of law. A preponderance of evidence is sufficient. Ferris v. McQueen, 94 Mich. 367. Error is assigned upon the admission of some testimony. We think it was properly admitted. It is not of sufficient importance to the profession to discuss. Judgment reversed, and new trial ordered. The other Justices concurred.