Conway's Executors and Devisees v. Alexander
11 U.S. 218 (1812)

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U.S. Supreme Court

Conway's Executors and Devisees v. Alexander, 11 U.S. 218 (1812)

Conway's Executors and Devisees v. Alexander

11 U.S. 218

Syllabus

If A advance money, to B. and B. thereupon convey land to trustees in trust to convey the same to A. in fee in case B. should fail to repay the money and interest on a certain day and if B. fail to repay the money on the day limited, and thereupon the trustees convey the land to A., B. has no equity of redemption.

Page 11 U. S. 219

Walter S. Alexander, the appellee, son and residuary devisee of Robert Alexander, deceased, filed his bill in equity against the executors and devisees of Richard Conway, deceased, to be permitted to redeem a certain tract of land which his father, Robert Alexander, had, in the year 1788, conveyed to certain trustees by a deed which the complainant contended was a mortgage, which land the trustees had conveyed to W. Lyles, who had conveyed the same to said Richard Conway. The deed was by indenture, dated March 20, 1788, between Robert Alexander of the first part, W. Lyles of the second part, and certain trustees of the third part, whereby Robert Alexander (after reciting his title to an undivided moiety of 400 acres of land, holden in common with Charles Alexander), in consideration of �800 paid to him by W. Lyles, and in consideration of the covenants to be performed by the trustees, bargained, granted and sold, aliened and confirmed to W. Lyles, in fee, twenty acres, being part of the said undivided moiety -- and to the trustees the residue of the moiety, except part thereof conveyed to B. Dade on 1 January, 1788, which residue was supposed to contain 140 acres, to have and to hold the 20 acres to W. Lyles, his heirs and assigns, to his and their use forever -- and the said residue of the said moiety to the trustees and the majority of them, and the survivors and survivor of them, in trust as follows, to-wit:

"To convey the said residue of the said moiety, except as before excepted, unto him the said W. Lyles, his heirs and assigns forever, by good and sufficient deeds in law for that purpose, at any reasonable time after the first day of July, which shall be in the 1790, unless the said Robert Alexander, his heirs, executors, or administrators shall pay or cause to be paid to the said W. Lyles, his heirs, executors, or administrators the sum of �700 current money of Virginia in gold or silver coin, with lawful interest thereupon from the date hereof on or before 1 July, which shall be in the year 1790. And if the said Robert Alexander, his heirs, executors, or administrators shall pay or cause to be paid to the said W. Lyles, his heirs, executors, or administrators the said sum of �700 current money of Virginia, in gold or silver coin, with lawful interest thereupon,

Page 11 U. S. 220

at any time on or before the said first day of July, which shall be in the year 1790, in trust, immediately upon the payment being made, to reconvey to him the said Robert Alexander and his heirs forever, by good and sufficient deeds in law, all the title which by virtue of these presents passeth to them the said [trustees] or any of them, of, in, and to the said residue of the said moiety, except as before excepted, hereinbefore granted and confirmed unto them."

Robert Alexander then covenants that he has good title in fee simple to the land conveyed, and that the 20 acres shall be laid off in a certain situation contiguous to other land of Lyles, and by certain metes and bounds therein described. The trustees then covenant that they will well and truly execute the trusts reposed in them by reconveying the land to Robert Alexander, if he should pay the money and interest on or before 1 July, 1790, or by conveying it to Lyles, if Robert Alexander should not pay it by that day. Robert Alexander then covenants with Lyles, that he will make further assurance, &c., both as to the 20 acres, and as to the residue of the moiety, if the trustees should convey it to him. He then covenants to warrant the 20 acres to Lyles against the claims and demands of all persons whomsoever. This deed did not contain any covenant on the part of Alexander to pay the �700.

On 19 July, 1790, the trustees, by deed of that date, reciting the deed of 29 March, 1788, and that Lyles had represented that R. Alexander had not paid the money, and had required them to execute the trust, conveyed the residue of the undivided moiety in fee to Lyles, in consideration of the covenants, agreements, and trusts in the former deed contained on their part to be performed, and in consideration of �700 mentioned in the said former deed to have been paid by Lyles to Alexander.

On 23 August, 1790, Lyles by deed of that date (after reciting the title of Robert Alexander to the undivided moiety of the 400 acres of land, and his deed of 20 March, 1788, to Lyles and the trustees, and that Alexander failed to pay the �700 on 1 July, 1790, and that the trustees, by their

Page 11 U. S. 221

deed of 19 July, 1790, had conveyed the land in question to Lyles) in consideration of �900 paid him by Richard Conway, conveyed the 20 acres, and the residue of the undivided moiety of the 400 acres, and all his right, title, interest, use, trust, property, claim, and demand, in and to the same, by force of the said indenture, and all deeds, evidences and writings in any manner or way touching the same, and the right and privilege of prosecuting in the name of Lyles (if at any time judged necessary by Conway, his heirs or assigns), any actions at law for the breach of any of the covenants in the said indenture contained, to have and to hold all and singular the premises thereby granted, with the appurtenances, and all the estate, right, title, use, trust, interest, property, claim, and demand of him the said W. Lyles thereto, by force and virtue of the aforesaid indentures to Conway, his heirs and assigns, to his and their use forever, with a special warranty against the claims of Lyles and his heirs and assigns only.

On 17 January, 1793, Robert Alexander made his will, and after devising specifically a number of tracts of land and moieties of tracts by name and description, to his son Robert, devised all the rest and residue of his estate, real and personal, to his son Walter, the complainant. Robert Alexander, the testator, died in February, 1793. The land in question was not specifically devised by his will, and Walter, the complainant, obtained title under the will to several other tracts not specifically devised.

The complainant became of full age in November, 1803, and brought this suit in 1807.

The deposition of W. Lyles was taken on the part of the defendants. He testified that Robert Alexander was not indebted to him at the time of the contract for the land. No part of the money was advanced by him as a loan to be secured by mortgage. He was no lender of money, and would not have lent Alexander the money on mortgage. Alexander was generally reputed not punctual in paying his debts, and rather too fond of law, and at the time of the contract for the land was confined in jail for a large debt, and sent several times to Lyles, and urged him buy the land. Lyles then

Page 11 U. S. 222

resided on land adjoining the 20 acres; and his house was very near the line. He wanted the addition of about 20 acres, and was not anxious to have any more. Alexander was more willing to sell his whole residue of the moiety of 400 acres than to sell a part, his object being to raise a considerable sum to pay the debt for which he was in prison. It was agreed that the 20 acres should be sold absolutely, and the residue should be sold conditionally, as otherwise Lyles would not advance the money. The 20 acres were purchased absolutely, to suit the convenience of Lyles, and the residue was purchased conditionally, to suit Alexander. Lyles was determined to advance no money on any bargain which should make it necessary to go into court to get it back. The condition was understood by both to be that if he paid the money by the time limited, the trustees were to reconvey the land to Alexander, but otherwise they were to convey it to Lyles in fee simple, and he was to have the land thereafter absolutely to his own use forever. He sold it as soon as he could after he left Alexandria, to get back his money. He received from Conway �900 at the date of the conveyance, or a few days after. Alexander never made any claim upon Lyles for any part of the land, and never expressed to him any dissatisfaction with the sale, although he saw him frequently afterwards. Alexander was not in confinement when the trustees made their deed to Lyles. No part of the land was cultivated, and no formal possession delivered.

The deposition of Ch. Lee, Esq. who drew the deeds of 20 March, 1788, and 19 July, 1790, stated that Lyles consulted him about the bargain with Alexander, and represented that Alexander wanted a considerable sum of money to pay a debt which was pressing, and offered to sell some land, but would not sell the whole of it absolutely, but was willing to sell part of it absolutely, and the residue was to be conveyed to trustees, in trust, to convey the fee to Lyles, if a certain sum of money was not paid by a certain day; and if it was, the trustees were to reconvey to Alexander. The deponent was asked if such a contract was lawful, or would be deemed in law only a mortgage, and gave it as his opinion, that the parties might make such a contract, and that it could not be considered a mortgage. Lyles intimated that if that was not very clear, he

Page 11 U. S. 223

would not have anything to do in the business. That he would not, on any terms, make a bargain with Alexander, if he should be obliged to go into a court of equity about it, which might be the case if there should be a mortgage; that Alexander was well known to be troublesome and found of law. The deponent was requested to draw such instruments as would place the contract in the state of a conditional purchase of a part of the land, and with this view he drew the writing. He is certain that Lyles consulted him as to the nature and effect of the contract, and did not intend to have a deed in the nature of a mortgage, but of absolute sale of a part, and of a conditional sale of the other part of the land, and such was the deponent's intention when he drew the deed. That he afterwards drew a deed of conveyance from the trustees to Lyles to carry into effect their trust, and delivered it to Lyles to carry to the trustees. Lyles informed him that one of the trustees refused to execute the deed, unless Alexander would signify his consent, and asked whether a verbal consent would not do. The deponent sketched a note in writing for Alexander to sign, signifying his consent, and was afterwards informed that the trustees were satisfied, and did execute the deed, but he does not know whether Alexander gave his consent. Lyles was not easy in his pecuniary affairs, and he never knew him lend a large sum upon mortgage. Alexander was a bad manager of his estate, was generally needy of money, and not punctual in payment of his debts, though his landed estate was really of great value.

The answer of the executors does not admit the deed to be a mortgage, and states that Conway began to make expensive and permanent improvements on the land in the summer of 1791; that Alexander had an opportunity of seeing part of them, and probably did see them, and made no objection as they believe.

It appeared in evidence that the land had lately been sold for more than $20,000, but that it was very poor, much broken by gullies and exhausted, when Conway began his improvements. There was also evidence tending to show, that it was then worth more than he gave for it.

The court below being of opinion that the deed was

Page 11 U. S. 224

to be considered as a mortgage, directed an account to be taken of the value of the permanent improvements, and the original sum advanced by Lyles and interest, and of the rents and profits, which being done, it appeared that the complainant would have to pay the sum of $4,943 to redeem the land, and the court accordingly decreed a release upon the payment of that sum.

From this decree the defendants appealed to this Court.

Page 11 U. S. 235

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