Lawrence v. DuBois

Green, President,

delivered the opinion of the Court :

syllabus 3. The first question presented by the pleadings in this cause is: Had the circuit court jurisdiction of this cause,'the tract of land, which is the subject of controversy, lying in Boone county? The defendants, Dela-field DuBois and Alice G. DuBois his wife, who had the legal title to this land, resided in Kanawha county, and it therefore had jurisdiction to hear and determine such a cause. See Acts of 1872-3 chapter one hundred and seven, section o.ne. This suit might have been brought *456 in Kanawha county, even though the land had not been this State, the residence of the defendants, whose deed is sought to be set aside, giving the court jurisdiction,no matter where the land lay. See Penn v. Lord Baltimore, 1 Ves. Sr. 444; Farley v. Shippen, Wythe (Va.) 143; Guerrant v. Fowler & Harris, 1 H. & M. 4; Hughes v. Hull, 5 Munf. 431; Cranstown v. Johnston, 3 Ves. Jr. 170; 25 Ves. Jr. 277. The distinction established by these cases is, that when the decree or judgment is to affect the lands directly, as in an action of ejectment or a suit in this State to divide a tract of land in another State, the court has no jurisdiction, except where the land lies. But if the decree is to affect the person of the defendant, the court where the defendant resides has jurisdiction, no matter where the land lies. For in one case the court could not enforce its judgment or decree, but in theother it could be completely enforced, even if the land lay in a foreign jurisdiction. In this case though Henry A. DuBois lives in Connecticut, yet the defendant Alice G. DuBois, lives in Kanawha county, and she holds the legal title to this land, Henry A. DuBois having now no title to this tract of land legal or equitable, and the court therefore can have no difficulty in enforcing its decree, and therefore properly took jurisdiction of the cause.

The next inquiry is: Did the court err in permitting the plaintiff, M. M. Lawrence, against the protest of the defendants to amend his original bill and make his children co-plaintiffs with him ? The appellees’ counsel insists, that the original bill of M. M. Lawrence showed on its face that he had no interest whatever in this tract of land, and that if it was not owned absolutely by the defendants, the children of the plaintiff, and they only, would claim an interest in it, and therefore this court ought not'to have permitted the plaintiff to amend his bill and make these children co-plaintiffs with him. This however is an obvious error, the original bill expressly states that the plaintiff, M. M. Lawrence, was to remain in the possession and enjoyment of this land, till he *457 paid the |50.00 advanced to him and interest, and then it was to be conveyed to his children, it not being that this agreement was in writing. It is true this original bill alleged that this $50.00 was fully paid, but it does not therefore follow that he could have no interest in this tract of land. His children might not choose to accept the conveyance of the land, and there are in the record affidavits of some of them saying they claimed no interest in this tract of land; and this arrangement between M. M. Lawrence and Henry A. DuBois by the statements in the original bill being a mere verbal understanding could confer on the children of Lawrence no rights. A mere verbal promise to give land, when unaccompanied by any possession, can confer no rights on the parties. Even if this arrangement had been evidenced by writing, as the amended bill states it was, still M. M. Lawrence was properly a party plaintiff, and being so, it was proper in the court to permit the original bill lo be amended and to make his children, who had not then before been parties to the suit at all, parties plaintiff with him. The amended bill shows thatM. M. Lawrence has not paid the whole of this $50.00 and interest, and that being so, he has obviously an interest in the controversy, being, if his case is proven, a right to the possession of the land or the rents and profits of it, till this controversy is ended.

Syllabus 5. I have not in the statement of the case referred to the facts stated in the deposition of Delafield DuBois. The written admission of the parties show, that the deed of this tract of land made by Henry A. DuBois was made to the wife of Delafield DuBois, and he vras unquestionably incompetent at common law to testify in her behalf, and our statute, so far from making him a competent witness, but emphasizes the common law exclusion of him. The fifth section of chapter one hundred and thirty of our Code, page six hundred and twenty, provides : ‘A husband shall not be examined for or against his wife, except in an action or suit between husband *458 and wife.” As his wife is directly interested in the question of what, if any, is the amount of the indebtedness of M. M. Lawrence to Henry A. DuBois, he cannot testify on this subject, and is therefore incompetent to prove what sum has been paid by M. M. Lawrence to Henry A. DuBois, or what taxes have been paid by Henry A. DuBois on this tract of land, or what improvements have been put upon this land by his wife. See Hill v. Proctor, 10 W. Va. 59; Rose & Co. v. Brown et ux., 11 W. Va. 122. The New York authorities, referred to by the appellees’ counsel to show that a husband may be a witness on behalf of his wife, are entirely inapplicable, as they hold that this is so only by virtue of their statute law, which is materially different from our statute law. The fifth section above quoted is not, and never has been, a part of the New York statutes, and it was inserted ex- ' pressly to prevent the interpretation being put on our laws which by these New York decisions had been put upon their statute law.

The circuit court never acted upon the rules issued at the instance of John W. Lawrence and William R. Lawrence against their counsel on the record, to show cause why the suit should not be dismissed, though their affidavits were filed to support this rule, and therefore on this appeal there is no action of the court to review. With reference to this rule it is reasonable to infer, that it was abandoned by these parties, especially as long subsequent to the issuing of the rule a special replication was filed for them by the1 same counsel. The affidavit of James K. Lawrence to a similar effect copied into the record is no part of it, the record showing no motion of this character by him, and as he is one of the appellants, the inference is he is actively seeking to enforce his rights. If any of these parties desire, they can, as far as their interest extends, severally dismiss the cause as to themselves. If they disclaim any interest in it, then, as their interest in the tract of land was a mere gift from *459 their father, such disclaimer would restore to him the intereSt of Such of them as disclaim.

Syllabus i. We will now consider the case upon its real merits, as shown by the pleadings and proof. The question is, whether the transaction with reference to this tract of land, entered into in 1853between M. M. Lawrence and Henry A.DnBois, was an absolute sale, a conditional sale, ora mortgage. The deed of Payne and wife to Henry A. DuBois, dated April 9, 1853, by which this transaction was consummated, was an absolute conveyance on its face. But it is perfectly well settled almost everywhere, and especially in Virginia and West Virginia, that such an absolute sale may be converted into a conditional sale or a mortgage by proving that the real intention of the parties was that it should not be an absolute sale, and that such intention may be proven by the surrounding circumstances and by parol proof. It is unnecessary to cite authorities to establish this position, which is, so far as I know, alinost, universally admitted ; but the cases of Klinch v. Price, 4 W. Va. 4, and Davis, committee v. Demming et al., 12 W. Va. 246, establish this to be the law in this State.

The appellees counsel refer to Miller et ux. v. Stokley et al., 5 Ohio St. 194; Boyd v. McClean, 1 Johns. Ch. 582; De Witt C. Van Tuyl et al. v. The Westchester Fire Insurance Co., 55 N. Y. 657; The Western Mining and Manufacturing Co. v. Peytona C. C. Co., 8 W. Va. 406, to prove that in such a case it is essential that the parol evidence should be so certain and conclusive, as to exclude 1 every rational hypothesis to the contrary with the certainty of a positive written declaration of a trust, before it can control an absolute conveyance. But the rule, e'ren in reference to the weight of the parol evidence necessary to establish an express trust in a case, where the deed is absolute on its face, has never been laid down thus strongly, except where there has been á long continued possession in opposition to the alleged express trust. And when this circumstance is absent, it has been only *460 down that the express trust must be shown'by parol Pr0°f" affirmatively, and so conclusively as to remove all reasonable and well founded doubt. The cases too, in which the rule is laid even thus strongly, as will be seen by reference to the above authorities cited by the appellees’counsel and Troll et al. v. Garter, 15 W. Va. 567, are cases in which an express trust is sought to be set up in opposition to a deed absolute on its face, or cases of resulting trust, where land is bought in the name of one party and with his money and the deed is taken in the name of another, or it is attempted to control a Avritten contract by proving by parol proof that a mistake was made in writing the contract.

Syiiabus 2. It is however obvious, that rules laid down in these cases can have but little influence with a court, in deciding whether a deed absolute on its face was intended by the parties as a conditional sale or mortgage. In all such cases the circumstances, which surround the case, very frequently have a powerful, nay almost controlling, influence in determining the question, and the direct parol evidence may be quite weak, and yet the court may hold the absolute deed as a conditional sale or a mortgage, because these surrounding circumstances are strong to show, that such was the real character of the transaction. Some of these strong circumstances, leading the court to hold that a deed absolute on its face is nevertheless a conditional sale or mortgage, are pointed out in Davis v. Demming et al., 12 W. Va. 282. If the price is grossly inadequate, it raises a strong presumption, that the transaction was a mortgage, and not an absolute sale. The fact, that by the papers executed no right of redemption exists, is a matter of no importance, if it is shown satisfactorily by proof or by the surroufiding circumstances, that a security or pledge for a debt was intended ; for a party is never allowed to take from his debtor by any form of contract his right to redeem. See Chapman v. Turner, 1 Call 280; Thompson v. Davenport, 1 Wash. 128; Pennington v. Handy et al., 4 Munf. 190; Scott v. Brit- *461 ton, 2 Yerg. 215; King v. Newman, 2 Munt. 40; Holdridge v. Gillespie, 2 Johns. Chy. 30; Clarke v. Cowen, 2 Cowen 325; Horn v. Keteltas, 46 N. Y. 605; Davis v. Demming et al., 12 W. Va. 282.

In the case before us this circumstance is very strong. The propei’ty conveyed was worth some $400.00 or $500.00 at least; and its annual rent according to the answers of the defendants sworn to by them was $25.00 a year Yet it is admitted, that the entire price paid for this property was $50.00. Another strong circumstance is, that the vendor remains in the possession of the property long after the alleged sale and payment therefor. Such a con tinned possession for a long time after the sale, if not inconsistent with an absolute sale, is a very un-usal accompaniment of it. See Ross v. Norvell, 1 Wash. 40; Thompson v. Davenport, 1 Wash. 125; Bennet v. Holt, 2 Yerg. 6; Davis v. Demming et al., 12 W. Va. 282.

This circumstance in the case before us is exceedingly strong. It is admitted that the vendor remained in the possession of the land claimed to have, been sold by him and paid for in full by the vendee, for the long period of at least fifteen years, and not only paid not one cent of rent therefor, but that he built on it successively two small dwelling-houses, cleared some ten acres of ground and planted an orchard of one hundred and fifty trees. ISFor is there any proof that during this long period of time any rent was demanded of him. I have said it was admitted that he had paid no rent during all this time, but after the lapse of all this time it is alleged in the answers of the defendant that he then paid $20.00 of rent. But that this is not true is distinctly proven by the production of the receipt for this $20.00. which on its face shows thaflUt was not paid for rent. The fact that the grantee of this land paid a portion of the taxes on this land does not rebut this strong presumption that this was not an absolute sale, for if it had been a conditional sale or a mortgage, it would have been necessary for him to pay these taxes and thus prevent the sale of it for the *462 non-payment of the taxes, as, if sold, he would have lost benefit of his mortgage.

Another very strong circumstance, to show that a deed absolute on its face is in reality a mortgage, is that, after the deed has been executed, the grantor still remains the debtor of the grantee for the consideration on which the absolute deed has been given. If this be clearly established, it is very strong evidence that what purports to be an absolute deed is but a mortgage, whether the consideration be an antecedent debt or cash paid with a written or verbal engagement on the part of the grantor to repay the same. See Stephen v. Cushman et at.. 35 Ill. 187; Hamet v. Dundas, 4 Barr (Penn. St.) 181; Morris v. Nixon’s ex’r, 1 How. (U. S.) 119; Hickox v. Lowe et al., 10 Cal. 197; Farmer v. Grose, 42 Cal. 169. In the case before the court was there, after the execution of the deed, a recognized obligation on the part of M. M. Lawrence to repay to Henry A. DuBois the $50.00 he had paid to him, when the deed was executed? And did DuBois, after the execution of this deed, claim that this $50.00 was a debt due from M. M. Lawrence to him ? If so, according to the authorities it is a very strong, if not conclusive evidence that the deed for the tract of land, though absolute on its face, was really a mortgage to secure the payment of this $50.00 and interest.

On September 25, 1870, M. M. Lawrence paid to Del-afield DuBois, the admitted agent of Henry A. DuBois, $20.00, and Delafield DuBois executed to him a receipt therefor, which on its face expresses on what account it was paid. There never had been any transactions between the parties other than this transaction about this tract of land located on Short creek in Boone county. The language of the receipt was, ffiat this $20.00 was “ to be applied to debt due on land on Short creek.” It would seem impossible to construe this language otherwise than as referring to this $50.00 and interest thereon. There was no other debt between the parties, which could have been said to be due on the land on Short *463 creek. And this debt being recognized as still payable, and as a debt after the execution of the deed, it is according to the authorities at the least very strong evidence that this deed was a mortgage to secure this debt. If the deed was intended by the parties as an absolute deed, then M. M. Lawrence could not owe this $50.00 and interest to DuBois; for if the deed was an absolute conveyance and intended as such, the payment of the $50.00 to Lawrence by DuBois could not have constituted him the creditor of Lawrence. And the fact, that Lawrence admitted himself to owe this $50.00 and interest as he did by making this payment of $20.00 on it, and the fact that DuBois claimed that Lawrence owed him this sum, seem to be entirely inexplicable, except on the assumption that this deed was regarded as a mortgage on the land to secure this debt, and not as an absolute deed; If this was the real understanding of this transaction, then the language of this receipt becomes plain. This $20.00 was to be applied to the debt on this land, that is, the debt secured on this land.

Syllabus 6. These numerous and strong presumptions in favor of not regardingthis deed as an absolute deed are in my judgment much strengthened by the parol evidence bearing directly on the nature of this transaction at the time it transpired. Henry A. DuBois proves, that Houston Estill was his agent to obtain this deed, and also that he was cognizant of the contract between Henry A. DuBois and M. M. Lawrence, for he states that it was made in his presence. How what this agent said while in the very act of executing this agency by procuring this deed for his principal, which indicated what the parties considered the true and real character of the deed, would seem clearly to be evidence as a part of the res gestee.

See Hawker v. B. R. & O. R. Co., 15 W. Va. 637; Corder v. Talbott, 14 W. Va. 277; Hanover Railroad Co. v. Coyle, 55 Pa. St. 402. If these declarations had been made after the transaction had been completed, they would not have been evidence. See Va. & Tenn. R. R. Co. v. Sayers, *464 20 Gratt. 351 and Griffin v. Montgomery R. R. Co., 26 Ga. 111. The magistrate who wrote, this deed testifies, that when it was being executed, Houston Estill, the acknowledged agent of DuBois, said that M. M. Lawrence owed Henry A. DuBois $50.00, and that this deed was to secure it; and Lawrence being present assented to this and' directed Payne to execute this deed. This it seems to me, was obviously a part of the res gestae and was clearly admissible evidence. And as this agent was present, when the contract was made between DuBois, his principal, and Lawrence, it would seem to be conclusive of the character of this deed, which, though absolute on its face, was declared at the time it was executed to be only a security for this $50.00. I do not rely on the further testimony of this magistrate, that this understanding was reduced to writing and signed by Estill, if not by Lawrence also, as the contents of this paper could not properly be proven, unless its loss had first been proven, which was not done.

Against this distinct evidence, that this deed was originally intended by the parties as a mortgage to secure this^debt, Henry A. DuBois says positively that it was an absolute deed, and that it was not intended to secure this $50.00, which, he says, Lawrence did not owe to him, as it had been paid to him in cash for the purchase absolutely of this tract of land. But his recollection of the transaction appears by the record to be very unreliable. He undertakes to fix the exact time of this transaction, as he thinks, on September 30, 1853; and he fixed it by knowing when he left Peytona finally, which he says was a day or two afterwards. But the date of the deed shows, that he is in this much mistaken ; the deed is dated April 9, 1853, nearly six months before he left Peytona; and instead of this deed having been procured for him by his agent, Estill, after he left here finally, it appears to have been executed in his office at Peytona long before he left, though he was not in the office at the time. It was acknowledged for recordation before he *465 left, and it is highly probable that he saw it before he left for his home in Connecticut. That his memory is very unreliable is further shown by his testifying, that the taxes on this land for one year were $19.50, and by his stating on oath in his answer, that the taxes and interest on this tract of land amounted to about $250.00, which he had paid. While the sheriff’s and clerk’s receipts for taxes filed lor several years show, that in those years the taxes on this land ranged from $2.10 to $9.94. The amount of taxes paid by him on this tract of land probably did not amount to $100.00.

Henry A. HuBois filed with his deposition a letter he wrote to M. M. Lawrence, March 24, 1871, as showing that his statement of this transaction is correct; but this letter, it seems to me, shows the reverse. It has been copied in the statement of the case. It seems to me to show clearly, that it had always been understood by him that this transaction amounted to but a mortgage, and that M. M. Lawrence had always been acknowledged as having the right to redeem this land on paying the $50.00 and interest. He says that it had been twenty years nearly since he bought this land and adds: “During all that time you had an opportunity of purchasing this land back by simply paying me what I paid with interest and taxes, and you have been repeatedly asked to do so.” If he had a right at any time to purchase, as he calls it, this land back on paying the $50.00 and interest, then the transaction in its legal aspect amounted to but a mortgage. It would seem from this letter, that he thought he had a right himself to foreclose this mortgage, and he undertook to do so by ejecting the mortgagor from the premises. This is, I think, the fair deduction from his letter. One cannot read it without being impressed with the belief, that according to the original understanding of the parties M. M. Lawrence had a right to redeem this land, and the complaint is that he had not done so.

I am therefore clearly of the opinion, that the deed executed by Payne and wife at- the request of M. M. *466 Lawrence to Henry A. DuBois was, though an absolute deed on its face, but a mortgage to secure the payment of this $50.00 with interest from April 9, 1853.

Syllabus 4. The appellees’ counsel insist that, though it might be regarded as a mortgage as against the grantee, Henry A. DuBois, yet as against Alice G. DuBois it must be, what it purports on its face to be, an absolute deed. This must depend upon whether she occupied the place of a purchaser of the land for valuable consideration without notice. That she paid a valuable consideration for this tract of land is not pretended; and therefore it is perfectly immaterial whether she had notice of the equity of Lawrence or not. But it is claimed her husband, Delafield DuBois, was a purchaser for valuable consideration without notice, and that she is entitled to occupy his position. She is entitled to occupy his position ; and if he is a purchaser without notice of this equity for a valuable consideration, then this tract of land is discharged of this equity. He may be a purchaser for valuable consideration, but he was certainly not a purchaser without notice of this equity. He was the general agent of his uncle, Henry A. DuBois, in this State for years, and it would be very improbable that he was ignorant of any facts in relation to the title of this land known to his uncle. That he knew that M. M. Lawrence had a claim on this land, and that, when he. paid off the debt secured on it, the land would no longer belong to his uncle, sufficiently appear from his receipt for the $20.00 paid on this debt on the land, that he gave to M. M. Lawrence September 25, 1870. ' The letter, too, written by his uncle, Henry A. DuBois, to M. M. Lawrence, a copy of which was sent to him, gave him sufficient notice of the equity of M. M. Lawrence and his children in this tract of land to prevent him from being a purchaser of this tract of land without notice of their equity. Yet he had a deed made to his wife for this land more than a year afterwards, and whether he paid a valuable consideration for this land or not is entirely immaterial. She *467 paid no valuable consideration for this land, and in her hands it is as much subject to this equity, which valid against her husband, as if the deed had been made to him, and he had made a voluntary conveyance of it to her.

This deed to Henry A. DuBois being then a mortgage, it remains to enquire: What was the extent of the debt secured by it? This debt is the $50.00 and interest from April 9, 1853, the date of the deed, and also all the taxes which have been paid on this tract of land by Henry A. DuBois or Alice G. DuBois, with interest on the same from the time these taxes were paid. The payment of these taxes was necessary to prevent the sale of the land for delinquent taxes, and to preserve this mortgage from destruction ; and therefore this tract of land must stand as a security for the repayment of them and the interest on them. But this debt, for which this tract of land is liable, is subject to a credit of $20.00 as. of date September 20, 1870, that being the amount then paid on it by M. M. Lawrence, and also to the amount of the rents and profits of the land since M. M. Lawrence was actually ejected therefrom, whether received by Henry A. DuBois or his assignee, Alice G. DuBois, less the amount of permanent improvements which have been put upon the property by Alice G. DuBois. This debt is payable to Alice G. DuBois as the assignee of Henry A. DuBois.

The decree therefore of the 12th day of December, 1876, of the circuit court of Kanawha county must be set aside, reversed and annulled; and these appellants must recover of the appellees, Henry A. DuBois and Delafield DuBois and Alice G. DuBois, his wife, their costs about their appeal in this Court expended; and this Court, proceeding to render such decree as the court below should have rendered, doth adjudge, order and decree, that the deed executed by Thomas Payne and his wife to Henry A. DuBois, dated April 9, 1853, conveying the tract of land in the bill mentioned, is a mortgage to secure the payment of a debt of $50.00 with interest *468 from April 9, 1853, originally due from M. M. Lawrence to Henry A. DuBois, and that the said tract of land must also stand as a security for all the taxes which have been paid thereon by either Henry A. DuBois or Alice G. DuBois, with the interest thereon since their payment; but that said debt, composed of this $50.00 and taxes and the interest thereon, should be credited by the $20.00 paid by M. M. Lawrence September 25,1870, and also by all the rents and profits of said tract of land, since the said M. M. Lawrence was ejected therefrom, less the value of the permanent improvements put upon said tract by Alice G. DuBois. And the court doth further adjudge, order and decree, that the said debt, composed of said $50.00 and the amount of said taxes and said interest subject to said credits, is coming now to Alice G. DuBois, the assignee of Henry A. DuBois, for her sole and separate use, and that the equity of redemption in said tract of land is in John W. Lawrence, William It. Lawrence, James K. Lawrence and Ann S. Lawrence, children of Merriman M. Lawrence; and that this cause is remanded to the circuit court of Kanawha county, with the directions, that it be referred to a commissioner of said court to ascertain the amount of said debt which is a lien on said land, including said taxes and interest, after allowing the credits hereinbefore stated ; and when so ascertained, if the same be not paid in a reasonable time, to be fixed by the court, to Alice G. DuBois for her sole and separate use, then the said tract of land, or so much thereof as shall be necessary, shall be sold under the direction of said court, and said debt so paid; and if the said debt, when so ascertained, shall be so paid in such reasonable time, then that the said circuit- court of Kanawha county shall decree that Delafield DuBois and Alice G. DuBois, his wife, shall execute a deed with special warranty of title for the said tract of land to John W. Lawrence, William R. Lawrence, James K. Lawrence and Ann S. Lawrence; and if any of said parties shall appear in said cause hereafter and disclaim any interest in said tract of land, or *469 decline to accept said deed, then his or her share in the said tract of land shall be conveyed to Merriman M. Lawrence in his or her stead; and the said circuit court shall further proceed in said cause according to the principles laid down in this opinion, and further according to the principles governing courts of equity.

The Other Judges Concurred.

Judgment Reversed. Cause Remanded.