Schwartz v. Lieber

Terral, J., delivered the opinion of the court. This is a bill by appellee to have a deed for the conveyance of land, absolute on its face, declared to be a mortgage, and to redeem the property therein conveyed. The appellant demurred to the bill, and, the same being overruled, he appeals. For several reasons, we think the decree correct: [260] 1. Though the deed is absolute on its face, yet there is nothing in the bill to clearly show that appellant took possession of the premises under said conveyance, and the statule (§4233, code 1892) requires such proof in writing only when the maker of the deed parts with possession of the property. For aught that appears in the bill, the premises may have been let upon long lease, and the rents may have been merely collected by appellant. ' 2. If, however, the allegations of the bill fairly support the idea that appellant took possession of the premises thereunder, still the bill specifically alleges that the deed Avas intended as a mortgage, and the demurrer admits the averment; and certainly it is competent for appellee to show, by any evidence in her power, whether set out in the bill or not, that the appellant has, in writing, admitted said deed to have been intended as a mortgage. The appellee has set out, in exhibit “B” to her bill, what she claims to be a written admission of appellant that the absolute deed was intended as a mortgage. But, if mistaken in that regard, we think, under other averments in the bill, she will be at liberty to show any written evidence of the admission of such fact, though such admission be not specifically set out in her bill by exhibit or othewise, and such admission would be competent and sufficient evidence of such fact. We think the appellee is not required to rest her case solely on the matter contained in exhibit “ B ” to her bill.- And yet, if that be the strongest admission on the part of appellant of which she can make written proof, she still has grounds for laying her contention before the court. She alleges in her bill that, about three years after making the deed here desired to be construed as a mortgage, she wrote appellant, stating her claim that there was an agreement between them that said deed should be considered a mortgage, and that to said letter appellant replied in writing, saying, “ When the deed was executed it was understood that, upon the payment of $1,060 [the exact amount of [261] the debt of appellee to appellant] to me, I would deed the property to ’ ’ appellee. Now, the written admission set out .by way of exhibit to the bill does, as we are inclined to think, support, more or less strongly, the contention of appellee, and may, of itself, constitute evidence tending to make the required proof. We are not to be understood as passing upon the weight of this admission set up in exhibit ‘£ B ” to the bill; for we prefer that the chancellor shall get the case well in hand and pass upon it, and then it will be in better shape for our consideration. Certainly the answer cannot be harmful, and we think the bill calls for one. Affirmed.