Freeman v. M. E. & J. K. Wilson , 51 Miss. 329 ( 1875 )

Simrall,'J.,

delivered the opinion of the court.

This bill was filed, by Pattie A. Freeman (complainant) against M. E. & J. K. Wilson, in the double aspect of either canceling the conveyance of the quarter section of land made by the complainant and her husband, to Mrs. Wilson, or of treating the conveyance as a security for money loaned.

The complainant states that she was compelled by her husband under duress of fear and threats to execute the deed; and that her acknowledgment was not taken in the presence of her husband ; that the money was paid to her husband and not to herself. The allegations in substance, on this point are that Mrs. Wilson loaned the money to her husband, and took the land as security therefor. “ She never made a contract about the money, or authorized any one to do so. She claims that she was ignorant of the contents of the deed, and signed under duress. In her deposition, Mrs. Freeman, supports the statements of her - bill, repeating that she was satisfied Capt. Freeman (her husband) got the money and that she would pay it if she knew where to get it.

Mrs. Wilson and her husband executed a bond to Mrs. Freeman, to convey her the land, on payment twblve months thereafter of $950 in gold.

The answer of the defendants insists, that the real transaction with Mrs. Freeman was a sale of the land, and that their bond was executed in witness of an agreement to sell and reconvey upon the terms stipulated. They allege that before the proceedings were begun to recover possession of the premises, the defendants tendered to Mrs. Freeman a deed and demanded payment of the money.

There is no testimony showing that Mrs. Freeman was constrained by fear, or threats, to make the conveyance to Mrs. Wilson. There is a good deal of testimony, to the effect that Freeman was a violent, turbulent man, of intemperate habits, and when under the influence of intoxication, proneto quarrels and violence. It was proved that he was dogmatic and domineering towards his wife when drunk, and that she was habituated to comply implicitly with his commands and wishes. The chancellor was of opinion that the testimony did not establish this allegation of the bill. Upon a review of it, we think that these propostions are proved : That Freeman was a turbulent, violent man, of dissolute habits, both a drunkard and gambler ; that his wife was afraid of him, and conformed promptly to his commands. But the testimony comes short of showing that in this particular transaction, Mrs. Freeman was induced, by the persuasion or the compulsion of her husband to go into it. Several persons were present when the deed was signed by her. It was read to her by Col. Blair, who wrote it. The justice of the peace deposes, that his certificate states the truth ; that he did take her acknowledgment separate and apart from her husband.

Nothing occurred at the time the witnesses speak of it, calculated to excite a suspicion that Mrs. Freeman was acting under duress. Her playful remark, that instead of being under the influence of the fear, threats or compulsion of her husband, “ the compulsion was on the other side,” contributes to bear out the view which is presented in the testimony for defendants; that is, that Mrs. Freeman was anxious to get the money, and was willing to make the deed to the land for the money. Since the death of her husband, and before this litigation was begun, she more than once recognized the debt, and expressed a willingness to pay it, if she had or could get the means.

We agree with the chancellor in the conclusion which he reached on this point, and also, that Mrs. Freeman, in reality, acknowledged the deed, as required by the statute. The duress was not proved with that clearness and emphasis necessary to set aside the deed.

The conveyance must, therefore, stand as either assigning the title unconditionally to Mrs. Wilson, or as in the nature of a mortgage security for the money advanced. Manifestly the decree establishing the deed as a mortgage, merely, is much more beneficial to Mrs. Freeman than suffering it to operate as an absolute conveyance. For the preponderance of the testimony is, that the land is worth more than twice the amount of the debt.

It is now well settled doctrine in courts of equity, that they will examine into the true character of a conveyance, which, on its face, imports an absolute title, and will give it effect, as contemplated by the parties, to be ascertained by their contemporaneous and subsequent conduct. If they are dealing with respect to a loan, and the deed was intended as a security for the debt, parol evidence may be received to explain the true character, and limit the absolute deed into a mere security for the money, so that when the debt is paid the debtor will be entitled to a re-conveyance of the estate. Adams Eq., top pp. 247-8-9 ; Kenton v. Vandengrift, 42 Penn. St., 339; Prewett v. Dobbs, 13 S. & M., 440; Anding v. Davis, 38 Miss., 594; Vasser v. Vasser, 23 id., 378; Littlewort, Sup’t, v. Davis et al, 50 id., 407. All the circumstances may be looked at, especially a great inadequacy of price, and an agreement to recovery, where there has been a loan of money, or a pecuniary debt, the tendency of a court of equity would be to regard such deed and agreement rather as a mortgage than a conditional sale. Pearson v. Seay, 35 Ala., 612; Russell v. Southard, 12 How. (U. S.), 139.

Looking to all the circumstances, some of the more prominent of which are, that the application in the first instance was to borrow money, the sum advanced was much below the value of the land, the statement by Mrs. Wilson, to the effect that she regarded the deed as a security for the money, and of her husband that all he wanted was the money back, the agreement to reconvey, and the insertion of a larger sum, as the price, in order to cover usury for the money advanced, we are satisfied with the conclusion of the chancellor, as just and equitable, and consistent with the facts.

The case is like that of Yiser v. Scruggs, 49 Miss., a mortgage security for the husband’s debt. But whether the decree is right or not in converting the deed into a mortgage, it was such redress as Mrs. Freeman herself sought, if she failed to establish the duress.

Manifestly the appeal is prosecuted with a view of reversing the decree, because the conveyance of Mrs. Freeman was not set aside, upon the ground of compulsion and duress. If this court concurs with the chancellor on that point, manifestly the most favorable view for her is to give effect to the deed as a mortgage.

There is no error in the conclusion of the chancellor, in the case made, by the allegations of duress and compulsion. The decree is such as she desired, if the deed was not vacated.

Decree affirmed.