Judges： Deemer
Filed Date： 1/17/1895
Status： Precedential
Modified Date： 11/9/2024
Plaintiff and defendant are brothers. In the year 1878 the defendant lived in Dundas, in the state of Ohio, and was there engaged in the general merchandising business. The plaintiff lived upon the land which is the subject of this litigation, and was engaged in farming. Plaintiff fell behind in his business operations, and in the spring of 1878 was largely involved. He had mortgaged his land for three thousand dollars to the Aetna Insurance Company, and was also indebted to the defendant in the sum of one thousand dollars, which was also secured by mortgage upon the land. He was also indebted in other considerable amounts, which were unsecured. In the early part of the year 1878 plaintiff went to Ohio, to see his brother (the defendant), as he (plaintiff) says, to malee a loan from him, and, as the defendant says, to try and induce him to buy the laud- but. whichever is the true version, — and this is a matter for'
Ii is so well settled as to be among the fundamentals of the law that, while a deed absolute on its face may be shown to be a mortgage, yet the proof to establish it must be clear, satisfactory, and conclusive. No citation is needed in support of the rule. Equally well settled is it that loose and random admissions, made by the grantee, after he has accepted a conveyance absolute on its face, to the effect that the conveyance was but a mortgage, are to be received with great caution. Upon looking to the testimony, we find that all the correspondence between the parties, — of which there was much, — and all the written evidence of the transaction, are squarely against plaintiff’s claim. All these indicate the transaction was a sale, and not a mortgage. This the plaintiff admits. But he insists the reason for this was that he intended to deceive, if not to defraud, his creditors, and that the letters and written documents are wholly fictitious. If this be true, it does not place plaintiff in a very enviable position in court of chancery. We are inclined to believe, however, that the transaction was as defendant claims it to have been, and as all the written evidence shows it was, a bona fide sale of the property to the defendant. True, there is a vast quantity of evidence tending to show that the land was worth quite an amount in excess of the consideration paid. But as against this we have testimony that other land in the country at and about the time of the transaction was selling for but little, if any, more than defendant paid for the tract in suit. Again, defendant has not conducted himself as a mere mortgagee of the land. Shortly after the transaction, defendant left his home, in Ohio, and moved upon the land in question, and has put quite expensive improvements upon it, afnd otherwise treated it as an owner. He has held possession ever since, has paid the faxes, collected the rents, and claimed to' be the owner of the land. Plaintiff, at the time of the transaction, represented to various parties that he had sold his land to his brother-, and to no one has he claimed any different, except perhaps to his brother, until the commencement of this suit. It is passing strange if, a® he claims, his brother was simply to hold and use the land until he was repaid the amount of money advanced, that plaintiff should let the matter rest from 1879 to 1892, in view of the feeling existing between these brothers, without a!ny attempt to enforce his rights. According to plaintiff’s present claim, the amount advanced has been many times repaid from the use of the land and from the personal property turned over to defendant, and yet, notwithstanding a very bitter feeling existing between these men for years, plaintiff brings no action until the year 1892. We do not overlook the admissions said to have been made by the defendant with reference to his title to the land. Some of them may be explained upon a theory entirely ■consistent with defendant’s elaim. Others are manifestly untrue,