Babcocok v. Wyman,
60 U.S. 289 (1856)

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U.S. Supreme Court

Babcocok v. Wyman, 60 U.S. 19 How. 289 289 (1856)

Babcocok v. Wyman

60 U.S. (19 How.) 289


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.


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

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