Parol evidence is admissible to show that a conveyance of
property, absolute upon the face of it, was really a mortgage or
deed of trust.
In the present case, parol evidence, taken in conjunction with
corroborating circumstances, shows that the deed was not intended
to be absolute.
The statute of limitations is not applicable, because the
possession was not adverse. So also, the trustee is not protected
by the statute, although be sold the land and received the proceeds
six years before the bill was filed, because it was his duty to
apply those proceeds to the reduction of the interest and principal
of the debt due to him when the deed was made.
[MR. CHIEF JUSTICE TANEY AND MR. JUSTICE DANIEL DID NOT SIT
IN THIS CAUSE]
The bill was filed by Edward Wyman, a citizen of Missouri and an
assignee of Nehemiah Wyman by a deed of conveyance made in 1853.
The facts of the case are particularly stated in the opinion of the
Court, and need not be repeated.
The decree of the circuit court was as follows,
viz.:
"This case having been heard on the bill of complaint filed
therein, and upon the answer of the defendants thereto, and upon
the proof exhibited by the respective parties, and the parties
having been heard by their counsel, this Court both declare the
conveyance of Nehemiah Wyman to said defendant, bearing date the
twentieth day of November, in the year one thousand eight hundred
and twenty-eight, to have been a mortgage to secure the debts, the
amount whereof is named in said deed, as the consideration of the
same, and that at the times of the sales of the lands in said
conveyance set forth by the defendant, the assignor of the
complainant had the right to redeem the same, and doth declare that
the absolute sales and conveyances by defendant of said land to
bona fide purchasers for valuable consideration, without
notice, was a constructive fraud upon the rights of the assignor of
complainant, and that therefore he became entitled, as against
the
Page 60 U. S. 290
defendant personally, to an account of the value of the land and
of the rents and profits thereof, and, after deducting the amount
of principal and interest due said defendant, to the payment of the
balance, and doth declare that the complainant, as assignee, has
succeeded to those rights."
And said cause having been referred to a master, to take the
necessary accounts, in pursuance of the foregoing declaration of
this Court, and said master having made his report in the premises,
and the same being duly considered and the respective parties heard
therein, this Court doth order and decree that there be paid by
said defendant to said complainant the sum of twelve thousand and
sixty-seven dollars and nine cents, together with costs taxed at
four hundred and sixty-nine dollars and seventy-four cents.
Babcock appealed to this Court.
Page 60 U. S. 293
MR. JUSTICE McLEAN delivered the opinion of the Court.
The bill states the following facts:
Nehemiah Wyman was seized in fee of about eleven and a half
acres of land in Charleston, purchased by him of Tuft's
administrator, one acre of which he sold to Foster who gave a
mortgage to secure the payment of the consideration of $600, which
sum was not paid when due, and he entered to foreclose. The entire
tract on the 1st of December, 1820, had been mortgaged by him to
Francis Wyman, his brother, to secure three notes of that date, one
for $676, payable in one month; another for $650, payable in six
months; the third for $704.39, payable in one year, interest to be
paid on each note semiannually.
Shortly after this, Francis Wyman, by his will, dated 14 June,
1822, devised to defendant, Babcock, all his estate, including said
notes and mortgage in trust for testator's wife and children, and
made Babcock his executor. The testator died in August, 1822. On
the 1st of December, 1824, Nehemiah paid Babcock, as trustee and
executor, the note for $704 and interest, and from time to time
paid the interest on the other notes, up to December, 1826.
In 1825 or 1826, Nehemiah became embarrassed, and having entire
confidence in his brother-in-law, Babcock, he, by deed, 26 April,
1826, mortgaged the eleven acres of land as security of a note to
Babcock of that date for $1,200, payable in one year, with
interest. At this time little if anything was due to Babcock, but
it was understood, between them that Babcock would become security
for him or advance money to him the mortgage to stand as a
security. Before the 20th of November, 1828, Babcock did become
bound for and advanced
Page 60 U. S. 294
to him upwards of $400. In addition to this, there was due to
Babcock as executor, for rent, $136.71. On a settlement, Nehemiah
executed to Babcock three notes, one dated 7th November, 1828, for
$486.79, of which $400.08 were due Babcock individually, and $86.71
to the heirs of Nehemiah Wyman, Sr.; another note for $8.10, and
third for $50, due to the heirs of the same, were given.
Nehemiah being thus indebted to Babcock, as trustee and
executor, and not being able to pay the interest, Babcock and
William Wyman, brother of Nehemiah, urged him to make a clear deed
in fee for the land aforesaid to Babcock, that he might manage and
improve the same, and apply the rents and profits to pay interest
on the encumbrances and to the gradual liquidation of the
principal. And finding that this conveyance to Babcock was made a
condition of further advances, he eventually conveyed the estate to
Babcock, it being expressly agreed by Babcock that notwithstanding
the form of the conveyance, it should stand as security only for
the sums due to him.
That on the 20th of November, 1828, a memorandum was made out of
the sums thus due and handed to Nehemiah as evidence of the amount
for which the land was held.
At the time this deed was executed, no one of the notes held by
Babcock was surrendered, nor the mortgage to Francis Wyman,
deceased. All the evidences of indebtedness remained in the hands
of Babcock, Nehemiah holding only the memorandum of the sums. The
total amount of the notes in said memorandum, with interest to the
20th November, 1828, amounted to the sum of $2,033.87.
Upon receiving the above deed, Babcock took possession under it
-- not only of the eleven acres, but of the adjoining acre.
Babcock, it is alleged, received annually, from sales of clay,
grass, and ledge stone from the land, more than enough to pay
interest and taxes. Nehemiah having removed to the West, regardless
of his trust, Babcock sold the land at private sale, without notice
to the said Nehemiah and in fraud of his rights, for eight thousand
dollars.
In the sale, Babcock represented himself to be the sole owner of
the premises. On the 4th of February, 1853, Nehemiah conveyed his
right to redeem to Edward Wyman, the complainant &c. Within two
years, Babcock has promised William Wyman, acting for his brother,
that he would come to an account with Nehemiah for the price of the
land and pay him the proceeds of the sales, deducting the debts
aforesaid, if he would take his notes on time, and would refer the
question of amount of rents and profits to the arbitrament of
neighbors.
Page 60 U. S. 295
Babcock has frequently, recently, admitted that it was
originally intended that said deed should stand as security for the
amount set forth in the memorandum, and that he always intended to
do right in the matter, but that he had been advised by counsel
that, the agreement not being in writing, could not be enforced,
and this was the reason he refused to perform it.
The bill prays for an account, and the defendant in his answer
admits the conveyance stated in the bill and that the land was
subject to the mortgages. He avers the consideration named in the
deed was the amount then due defendant in his own right, and as
executor and trustee, and the further sum of $8.10, due the
defendant, and $50 due as agent. He admits no additional
consideration was paid, but he states the land was not worth more
than $1,900; that he consented to receive the deed in payment of
the sums due him personally, and upon an agreement that if he
should be able to obtain therefrom, in addition, enough to pay the
sums due to him as executor and trustee, he would pay these sums,
and upon no other trust or confidence whatever.
That upon the delivery of the deed, he cancelled the notes of
Nehemiah held in his own right, and either surrendered them to him
or destroyed them. That he did not cancel the notes held by him as
executor or trustee because he was not satisfied that he should
receive enough from the land to pay the same, and in order to
prevent the presumption that he had so agreed absolutely, he made a
minute thereon to the effect that he did not guarantee the payment
thereof, it being the understanding between him and Nehemiah that
Nehemiah should be personally liable therefor.
That he made no other agreement, and he denies that it was
understood or agreed, that the land was conveyed to him on the
trust set forth in the bill; but insists that the conveyance was
absolute, in payment of the sums due him, and liabilities incurred;
and the only understanding was that if the defendant should realize
therefrom more than enough to pay his own claims, he would pay the
debts due him as executor and trustee.
Defendant took possession of the land and for eight years
occupied it, Nehemiah never claiming any interest in it. He denies
the allegations of the bill as to the trust, sets up the defense
that the agreement, not being in writing, cannot be enforced. He
denies that he proposed a compromise, if his notes would be taken
on time, as alleged, and he pleads the statute of twenty years
limitation &c., and avers the profits of the land did not
exceed the taxes &c.
Three points may be considered as embracing the merits of this
case:
Page 60 U. S. 296
1. Was the deed executed by Nehemiah Wyman to Babcock, for the
eleven and one-half acres of ground, given in trust?
2. Can this trust be established by parol evidence?
3. Does the statute of limitation or lapse of time affect the
complainant's rights?
No one can read the history of this case as stated in the bill
without being impressed with the confidential relations of the
parties. The grantor and the grantee were brothers-in-law, and the
advisers bore the same relation to the grantee. It was a family
concern, designed, as it would seem from the bill, to aid an
embarrassed member of it without a probability of loss by the other
members.
The bill charges, when the deed in question was executed, the
sums which it was intended to secure were stated and handed to
Nehemiah. This is not denied in the answer, and William Wyman, the
brother, being present, swears as a witness to the sums so stated,
amounting in the whole to the sum of $2,033.87, the consideration
named in the deed. This list was in the handwriting of the son of
Babcock, and the paper was delivered to Nehemiah in the presence of
the witness. The deed was drawn by the witness, and he knows that
the sums named included all the debts which Nehemiah owed to
Babcock individually, or as trustee. The witness remembers Babcock
said, after the statement was made, and sixty-two cents for
recording the deed, which made the sum inserted as the
consideration in the deed. Nehemiah hesitated to sign the deed,
when Babcock said, he can have the land again, at any time he shall
pay the debts secured by it.
The answer avers when the deed was executed the defendant gave
up the notes of Nehemiah held in his own right and either
surrendered them to him or destroyed them. But it is proved by the
same witness that he did neither. These notes were given to the
witness without explaining to whom they belonged. Witness supposed
they belonged to the estate of Nehemiah Wyman, Sr.
The witness says the property, at the time it was sold, was
worth thirteen or fourteen thousand dollars, and that it was sold
greatly below its value.
The bill charges that the defendant promised William Wyman,
acting for his brother, that he would come to an account with
Nehemiah for the price of the land and pay him the proceeds of
sales. This is denied in the answer. William Wyman swears that on
the 8th of November, 1851, he showed to Babcock the memorandum of
the sums named, to secure the payment of which the deed was
executed. He was much embarrassed, and admitted the handwriting was
his son's, then
Page 60 U. S. 297
deceased. He then expressed a willingness to settle it up, and
asked the witness how shall this be done? Witness replied that he
should first charge Nehemiah with all his notes and interest, and
then credit him with the proceeds of the land and what he received
from the land, with interest, and be allowed a fair compensation
for his trouble. He then said, "I can't tell how much I have
received from the land, but we will leave it to two good men," and
that he would give his note for what should be due.
A short time after this, Babcock told witness that he had
consulted counsel, who advised him to pay the amount due the estate
of Nehemiah, Sr., and no more; and this he offered to do if the
witness would execute a bond of indemnity against any farther
claim. He said that he had been advised, as the deed was absolute
on its face and no writing showed that the land was conveyed in
security of a debt, the obligation could not be enforced.
The witness signified to Babcock sometime before the sale of the
land that he would redeem it for his brother.
Nehemiah Wyman, having transferred all his interest to the
complainant, was examined as a witness, who stated, at the time he
executed the deed to Babcock, he owed him, as an individual, as
executor and agent, the sum of $2,033.87, which included sixty-two
cents for recording the deed, and that sum was stated as the
consideration in the deed. Of this sum, only $408.18 and interest
were due to Babcock in his individual capacity.
In his answer, the defendant states that the conveyance was made
in payment of the sums due him personally; that he did not cancel
the notes held by him as executor or trustee, because he was not
satisfied that he should receive enough from the land to pay those
debts. But the proof shows that the debt due him as executor and
agent, and also his individual debt, were all included in the
consideration named in the deed.
The defendant made no advance to the witness on the note and
mortgage for twelve hundred dollars, but at the date of the
subsequent conveyance, the defendant had advanced to him $400.08,
and $8.10, which, as above stated, constituted the debt due to the
defendant on his personal account.
The conveyance was made to the defendant, the witness swears,
with the express understanding that Babcock was to have the entire
management of the land, so as to apply the proceeds in payment of
the interest, and witness was to have the land again on paying the
sums specified. He was induced to make the conveyance by the urgent
request of his brother William and Babcock; his brother told him if
he did not
Page 60 U. S. 298
make it he would not assist him in his pecuniary matters. On the
execution of the deed, none of the notes held by Babcock was
cancelled or surrendered to the witness, but they are still held
against him.
The witness says that Babcock promised to keep an account of the
receipts of the land conveyed to him, but in his answer he says he
kept no account, "because the land and rents and profits were his
own, without any liability to account to anyone."
Such a transaction as set out in the bill, between
brothers-in-law, in the nature of things might be supposed to have
taken place in the mutual confidence of the parties, and in the
final adjustment there should be no evasions or subterfuges to gain
an advantage. So far as regards the deed under consideration, all
the material allegations of the bill are proved, and all the
material averments of the answer seem to be unfounded. In coming to
this conclusion, we do not rest alone on the witnesses Nehemiah and
William Wyman. There are strong circumstances which corroborate the
witnesses and satisfy the mind beyond a reasonable doubt.
In his answer, the defendant avers that the land was conveyed to
him in payment of the sums due him personally. It appears from the
oaths of both the Wymans that this is not correct, and in addition
it is shown by the memorandum made out at the time, stating the
sums for which the land was conveyed, in the handwriting of the son
of the defendant.
Taking the statement of the defendant as true that he did not
intend to make himself responsible for the debt due to him as
executor and agent at the time the deed was executed presents him
in an unfavorable light. The land for which he received a deed from
Nehemiah Wyman, he was aware, had been previously mortgaged to
secure the debt in his hands as executors of Francis Wyman. Could
he have carried out this declared intention, he would have been
unfaithful to the trust committed to him.
William Wyman seems to be a man of business. He drew the
conveyance from his brother Nehemiah to his brother-in-law Babcock,
and he took in other respects an active agency in the transaction;
and he states the facts as alleged in the bill, and his statement
is in every respect corroborated by his brother Nehemiah; and
although the trust is denied in the answer, there are circumstances
in the case which go strongly to establish it.
The defendant admitted all the facts to William Wyman and
promised to settle the account, and spoke of the principles on
which it should be adjusted, but eventually he took refuge
Page 60 U. S. 299
under the statutes of frauds, of limitations, and the lapse of
time. We think there can be no reasonable doubt that the deed in
controversy was intended to be a mortgage. And this brings us to
the second point of inquiry:
Can the trust be established by parol testimony?
If the doctrine of this Court is to be adhered to, as laid down
in the case of
Russell v.
Southard, 12 How. 154, this is not an open
question. In that case, the Court said: "To insist on what was
really a mortgage as a sale is in equity a fraud." And in
Conway v.
Alexander, 7 Cranch 238, Chief Justice Marshall
said: "Having made these observations on the deed itself, the court
will proceed to examine those extrinsic circumstances which are to
determine whether it was a sale or a mortgage." In
Morris
v. Nixon, 1 How. 126, the Court said:
"The charge against Nixon is substantially a fraudulent attempt
to convert that into an absolute sale which was originally meant to
be a security for a loan. It is in this view of the case that the
evidence is admitted to ascertain the truth of the transaction,
though the deed be absolute on its face."
In
Edrington v. Harper, 3 J. J. Marshall 355, the court
said:
"The fact that the real transaction between the parties was a
borrowing and lending, will, whenever or however it may appear,
show that a deed absolute on its face was intended as a security
for money, and whenever it can be ascertained to be a security for
money, it is only a mortgage, however artfully it may be
disguised."
In
Jenkins v. Eldredge, 3 Story 293, Mr. Justice Story
said:
"In 4 Kent 143, 5th ed., it is declared,"
" A deed absolute upon the face of it, and though registered as
a deed, will be valid and effectual as a mortgage between the
parties if it was intended by them to be merely a security for a
debt. And this would be the case though the defeasance was by an
agreement resting in parol, for parol evidence is admissible to
show that an absolute deed was intended as a mortgage and that the
defeasance had been omitted by fraud or mistake."
In 2 Sumner 228, 232-233, Judge Story said:
"It is the same, if it be omitted by design upon mutual
confidence between the parties; for the violation of such an
agreement would be a fraud of the most flagrant kind, originating
in an open breach of trust against conscience and justice."
In
Foy v. Foy, 2 Hayward 141:
"In North Carolina, it is said the law on this subject is the
same as the English law was before the statute of frauds, and parol
declarations of trust are valid. . . . Where a testator gave by
will all his estate to his wife, having confidence that she would
dispose of it according to his views communicated to her, and it
being alleged
Page 60 U. S. 300
that the testator, at the time of making the will, desired his
wife to give the whole of the property to B, and that she promised
to do it, it was held, that the allegation being proved, a trust
would be created as to the whole of the property in favor of
B."
Podmore v. Gunning, 7 Simons 644.
Parol proof is admissible to show fraud, and consequently a
resulting trust, in a deed absolute on its face, notwithstanding
any denial by the answer.
Lloyd v. Spillote, 2 Atk. 150;
Ross v. Newall, 1 Wash. 14;
Watkins v. Stockett,
6 Har. & Johnson 435;
Strong v. Stewart, 4 John.Ch.
167;
English v. Lane, 1 Porter's Ala. 318.
In
Boyd v. McLean, 1 John.Ch. 582, it was held, after
an examination of the cases,
"that a resulting trust might be established by parol proof, not
only against the face of the deed itself, but in opposition to the
answer of the nominal purchasers denying the trust, and even after
the death of such purchaser."
The statute of frauds in Rhode Island contains no exception in
favor of resulting trusts, but Mr. Justice Story considered the
exception immaterial, for it has been deemed merely affirmative of
the general law. 1 Sumner 187.
Where a trustee misapplies the fund, it may be followed, however
it may have been invested, by parol, as between the parties, or a
purchaser with notice. So, where an estate was purchased in the
name of one person, and the consideration came from another, a
resulting trust may be established by parol, and in all cases where
there is a resulting trust.
In
Hayworth v. Worthington, 5 Black 361, it was held
that parol evidence is admissible to prove that a bill of sale of
goods, absolute on its face, was intended by the parties to be only
a mortgage. The court said these decisions are founded upon the
assumption that the admission of such evidence is necessary for the
prevention of fraud. Cas.Temp.Talbot 62;
King v. Newman, 2
Munf. 40;
Strong v. Stewart, 4 John.Ch. 167;
Dunham v.
Dey, 15 John. 555;
Walton v. Cronly's Adm'r, 14 Wend.
63;
Van Buren v. Olmstead, 5 Paige 9.
In the case of
Overton v. Bigelow, 3 Yerger 513, it was
held
"that an absolute bill of sale of negroes may be converted into
a mortgage by a parol agreement to allow the conveyor to redeem,
and this agreement may be inferred from the price given, and the
mode of dealing between the parties."
The case of
Walker v. Locke, 5 Cushing 90, is
considered as having no application to the case before us. It is
well known that until within a few years the courts of
Massachusetts had no chancery jurisdiction. The jurisdiction, when
first conferred by statute, was limited to cases of specific
execution
Page 60 U. S. 301
of contracts and trusts, not including fraud as a ground of
relief. Within someone or two years past, the jurisdiction has been
extended to frauds, but this has been done since the decision in
the case above cited.
If the decision had been made since the extension of the
jurisdiction beyond the construction of the local statutes, we
should consider it only as the decision of a highly respectable and
learned court, and not as a rule of decision for this Court.
It is admitted that the authorities on the question before us
are conflicting in this country and in England, but as this Court
in several cases has decided the point, and it is now and has been
for several years past a rule of decision, we are not prepared to
balance the state authorities, with the view of ascertaining on
which side the scale preponderates.
The third point regards the lapse of time and the statute of
limitations.
In his answer, the defendant avers that the pleadings show a
possession by him of more than twenty years before the institution
of this suit, and that that possession has never been disturbed,
and also that the proceeds of sale were received more than six
years before the bill was filed, and these facts are relied on to
bar the right of the complainant.
It is clear that the statute cannot constitute a bar in the
present case. courts of equity apply the statute by analogy to
cases at law; but in this case, the trust being established, there
was no adverse possession in favor of which the statute could run.
The possession was consistent with the intentions of the parties,
until the fraud was discovered, in 1851. Nor can the statute bar
the right of the complainant to the proceeds of the land, as
Babcock was bound to apply these to the payment of interest on the
debt, and in discharge of the principal.
The decree of the circuit court is affirmed with
costs.
MR. JUSTICE CATRON and MR. JUSTICE CAMPBELL dissented.
MR. JUSTICE CATRON dissenting.
The opinion just pronounced maintains that a deed in fee,
without conditions, and made in that form, according to an
agreement of the parties at the time, may be proved to have been a
mortgage by parol evidence, establishing that a defeasance was part
of the agreement when the absolute deed was executed; but that it
was left out by design. And that this parol proof may be made,
after the lapse of more than twenty years from the date of the deed
before the grantee was sued,
Page 60 U. S. 302
he having been in possession of the land conveyed, holding it
under the deed from its date up to the time when the suit was
brought.
The defendant among other things relied on the statute of frauds
as a defense to the suit. Lord Hardwicke lays down the rule in
Montacute v. Maxwell, 1 P.Williams 618, to be, that where
there was no fraud or mistake in the original transaction, and the
word or promise of the defendant was relied on, the statute of
frauds declares such promise void, and equity will not interfere.
And in this doctrine I understand the Supreme Judicial Court of
Massachusetts to concur.
Walker v. Locke, 5 Cush. 90.
The effect of the defeasance here set up, by parol evidence, is
that it defeats the absolute deed, and makes it void on payment of
a sum of money. On general principles, the rule is that where there
is a written contract, all antecedent propositions, negotiations,
and parol interlocutions, on the same subject, and deemed to be
merged in such contract. 1 Story Com. 173, sec. 160; 2 Story 286,
sec. 1,018.
There must be fraud or mistake in making the agreement, if it
can be reformed.
Id., sec. 157, 169.
I think the parol proof was inadmissible both by the statute of
frauds of Massachusetts, and according to the general rule referred
to, and that the decree should be reversed, and the bill
dismissed.
MR. JUSTICE CAMPBELL dissenting.
The defendant, in the year 1828, entered upon the land conveyed
to him by Nehemiah Wyman, and retained it until 1844. He then sold
it as his own property, and appropriated the price to his own use.
During this whole period, there was no act on the part of Wyman
from which the relation of a mortgagor or debtor can be inferred,
and no account was rendered by the defendant, nor was any act
performed by him inconsistent with his deed.
The evidence relied on to engraft a trust on this deed consists
of conversations reported by Nehemiah Wyman, the debtor, and his
brother William, as contemporaneous with the deed, and other
conversations reported by William Wyman as occurring in 1844 and
1851; and also the statements of the answer.
No intercourse between Nehemiah Wyman and the defendant took
place between 1828 and 1851, directly or mediately, relative to
this subject.
The witness, Nehemiah Wyman, is not, in my opinion, a competent
witness. This suit is brought by his son upon an
Page 60 U. S. 303
assignment made after the controversy had commenced, and with
the acknowledged purpose of using his father as a witness.
It was found that sufficient evidence did not exist to support
the claim, and machinery was resorted to, calculated to introduce
the evils of champerty and maintenance.
The witness sold his claim, with a concession to the assignee to
employ him as a witness to establish it.
Such a practice holds out to parties a strong temptation to
commit perjury.
Bell v. Smith, 5 B. & C. 188, J.
Bayley's Opinion;
Maury v. Mason, 8 Part. 212;
Clifton
v. Sharpe, 15 Ala. 618; 1 Penn. 214;
37 U. S. 12 Pet.
140.
The testimony of Edward Wyman is open to much observation, and I
feel entirely indisposed to rest a decree upon his evidence. Nor do
I see intrinsic difficulties in the inconsistencies of the answer.
I cannot shut my eyes to the fact that nothing has been done
between these parties for above twenty-three years inconsistent
with the relations of vendor and vendee, or consistent with the
relations of a creditor and debtor, except the detention of the
evidence of the original debt by the defendant, and the most
important part of that evidence was cancelled in 1830 by him.
I dissent from the opinion of the Court in reference to the
jurisdiction of the circuit court of the United States in
Massachusetts. It is admitted that, in the courts of Massachusetts,
this trust could not be incorporated into the deed. The statute of
frauds prevents it.
Walker v. Locke, 5 Cush. 90.
This statute constitutes a rule of property for the state. In
the present case, the subject of the suit is a contract made in
Massachusetts, by citizens of that state, and affecting the title
to real property there. In my opinion, the statute law of
Massachusetts furnishes a rule of decision to the courts of the
United States.