Wall v. Albion College

Montgomeby, J. John Wall, the complainant, on March 3, 1892, owned in fee simple the south 50 acres of the E. \ of the S. E. £ of section 25 in Eaton township, Eaton county, Mich. He was a married man, but he and his wife had separated, and at such time did not live together. The premises were worth $2,000. A mortgage had been foreclosed, and at such date the equity of redemption was about to expire. The amount required to redeem aggregated $950. The wife refused to execute either a deed or a mortgage, and the complainant was compelled to pay her $500 for so doing. The complainant negotiated a sale of the entire premises to one Joel P. Britten for $2,000; but subsequently a different arrange [527] ment was effected, whereby Britten took the south 35 acres, and Ruth F. Wall, a maiden sister of complainant, took the north 35 acres. The deed to Britten was executed by complainant and wife March 3, 1893; Britten paying $1,000 for such south 35 acres. The deed to Ruth F. Wall of the north 35 acres was executed at the same time, John and his wife joining in the execution of such deed. The complainant paid his wife the $500 he had agreed to pay her. - The contract entered into between complainant and his sister was oral, and substantially as follows: Ruth was to furnish John with $450, — the amount lacking to redeem from the mortgage; — and John was to give her a deed of the 35 acres, and Ruth was to have possession and all of the rents and avails thereof. She was to pay the taxes and meet the necessary expenses, and when the land paid her back, or when she got her money back out of it, she was to redeed to John. Ruth, not having the money, made arrangements to, and did, borrow the $450 from one Frank Rose. She immediately assumed possession, and from that time until her death, which occurred April 31, 1899, she had and received all the avails of said 35 acres; and complainant claims that she received therefrom the amount loaned, together with the interest and expenses, before her death, and was equitably bound to reconvey the 35 acres back to him. Ruth Wall died without having redeeded the property, and this bill is filed for the purpose of having this deed declared a mortgage, and redeeming from the same. The circuit judge made a decree in favor of the complainant, and the defendant the Albion College appeals. The evidence is overwhelming and convincing that it was intended that complainant retain an interest in this land, and it is manifestly inequitable that he should be deprived of it. But it is contended by defendants that certain testimony given by complainant in a certain probate proceeding shows that this was not technically a mortgage, for the reason that there was no agreement on his [528] part to repay the monejr, and no debt created. It is true that complainant testified in the probate proceeding: “ I do not claim that there was any obligation on me to pay her any of this $450. The deed paid her, and she got her pay, and when she got her pay she would deed it back to me.” An argument may be built up from this, it is true, that there was no understanding that there was any obligation upon the part of complainant to repay this money. It is altogether likely that neither party expected that he would be under the necessity of doing so, as it was evidently expected that the money should be realized from the land itself. But, in our view of the case, the whole transaction indicates that security was intended, and that it was complainant’s obligation which was being paid from the proceeds of the land, and that equity, at least, would raise a promise on his part to repay within a reasonable time. We also think the testimony supports the finding that the deceased was repaid her advances, interest, and taxes. We think the case falls within Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689), and that the decree should be affirmed, with costs of this court to complainant. Hooker, C. J., and Moore, J., concurred with Montgomery, J.