Carveth v. Winegar

Grant, J. (after stating the facts). We think there was ample testimony to sustain the conclusion reached by the circuit judge, and we see no reason for overruling that conclusion. The question is one entirely of fact. The circumstances under which the deed and contract were made, the conversation at the time, and the value of the land were competent evidence, under the.decisions, to show that the transaction was intended by the parties to be a mortgage. If the title passed to Mr. Winegar, under his [38] own testimony, as well as under the contract, he took the property in trust to sell for the purpose of paying up his own debt and that of the mortgage to his brother-in-law, and to pay one-half of the surplus to Mr. Carveth. This case comes within the rule that “in all doubtful cases the law will construe the contract to be a mortgage, because such a construction will be most apt to attain the ends of justice and prevent fraud and oppression.” Edrington v. Harper, 3 J. J. Marsh. 354 (20 Am. Dec. 145). In a case somewhat similar in its facts, the court held that r ‘ ‘ The form of the instruments employed is immaterial. That the mortgagor knowingly surrendered, and never intended to reclaim, is of no consequence. If there is vice in the transaction, the law, while it will secure to the mortgagee his debt, with interest, will compel him to give back that which he has taken with unclean hands. ” Villa v. Rodriguez, 12 Wall. 323. We think the case comes clearly within the rule of Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689). See, also, Stephens v. Allen, 11 Or. 188 (3 Pac. 168); Russell v. Southard, 12 How. 139; Wharf v. Howell, 5 Bin. 499; Strong v. Stewart, 4 Johns. Ch. 167; 1 Jones, Mortg. § 271. It is unimportant to state the details of the evidence. The facts in Sowles v. Wilcox, supra, are fully stated, and the facts in this case are sufficiently similar to those in that case to justify the holding that that case rules this. It is urged that defendant George has made improvements upon this land in. good faith in reliance upon his title. If so, he is entitled to compensation therefor, and his rights can be fully protected upon the accounting. The decree is affirmed, with costs. The other Justices concurred.