Hartley's Appeal

Mr. Justice Stebrett

delivered the opinion of the court,

The averments of fact, on which the equity of the plaintiff below was grounded, are substantially sustained by the report of the learned Master, and hence the decree based thereon should not be disturbed, unless the conclusions drawn by him and,approved by the court were unwarranted by the testimony, lie found, in substance, that prior to September 1st 1877, the appellee was the equitable owner, and has been in possession of the land in controversy since 1857, under articles of agreement on which there was due only $2-13.40 of the consideration money ; that on the first mentioned date, he assigned bv indorsement on the agreement, his right title and interest therein to appellant, who, in consideration thereof, agreed to pay the residue of purchase money to the holder of the legal title, obtain a deed for the land and hold the same as security for repayment of the amount thus advanced and expended in procuring the conveyance. The transaction was substantially the same in principle as if appellant had loaned appellee a sum sufficient to enable him to take the deed to himself, and the latter had then conveyed the land to appellant by deed absolute in form, but intended merely as security for repayment of the loan; in other words, a conveyance which, although absolute on its face, was intended by the parties thereto as security only. It is unnecessary to cite authorities to show that the defeasible character of such a conveyance, if executed prior to the Act of June 8th 3881 (P. L. 84), may be shown by oral testimony. If the transaction, out of which this contention has arisen, had occurred since the passage of that Act the plaintiff below would have had no case; but, having taken place before, the rale of evidence, recognized in Sweetzer’s Appeal, 21 P. F. Smith 264, and other cases, is still applicable. As was said in that case it is no longer ‘‘an open question that a conveyance, absolute upon its face, may be shown to be security for money loaned, and this may be made to appear by oral testimony. The rule does not impinge upon the statute of frauds, for the deed, if the proof be sufficient, never was a conveyance but simply a security for money. It was necessary to so hold the law to prevent fraud. If the entire arrangement shows the purpose of a transfer of property, by deed or otherwise, to be a security merely, it would be simply hypercritical to contend that this would not be evidence of the fact as fully as if expressly declared in so many words.” The rule as to the kind and degree of evidence required to convert such a deed into a mortgage is equally well settled.- It is said in Rowand v. Finney, 15 Norris 196, that while parol testimony is admissible to thwart the fraud of one who accepted a deed, simply as security, and afterwards attempts to hold it as an absolute conveyance, the evidence must be clear precise and indubitable. By this, however, it is not meant that there shall be no conflicting or rebutting testimony on the subject of the parol defeasance. If the party who sets up the defeasance is able to prove the fact by evidence that is not only clear and precise, but at the same time carnes with it a conviction of its truth, he is entitled to succeed, notwithstanding there may be rebutting testimony tending to prove the contrary. Fail credence may be given to the testimony on one side, while that on the other "may be rejected as unworthy of belief, or at best, insufficient to create even a serious doubt.

Testing the learned Master’s conclusions of fact by these principles, we cannot say they are erroneous ; on the contrary, we think he was fully warranted by the testimony in finding as he did. In the first place, it is almost incredible that the appellee, who had purchased and occupied the land in question for over twenty years, and had paid nearly all the purchase-money, would sell it for so much, less than its admitted market value.. In the absence of testimony tending to show any motive for such extraordinary conduct, it is difficult to conclude that any sane man would be guilty of such folly; but, without more, the inherent improbability of the transaction, as claimed by appellant, would be wholly' insufficient to overcome the responsive denial of his answer. Hence it was necessary for the appellee to sustain his position by other evidence, and we have it in the positive testimony of several witnesses, corroborating him, and directly contradicting appellant. They testify, in substance,' that they were present when the latter spoke ox his claim against Tingley, the appellee ; that, referring to it as a pecuniary claim against the land, he said “ he did not want the place, all he wanted was his money ; and, when asked how much Tingley owed him on the land, he replied $250, that he could have the place back by paying that, as he did not want the land.” Lewis Lovelace, one of the witnesses, says, “ I heard Hartley say that Tingley owed him $250 on the place. . . . . . Heard him say at different times he would give .Tingley baclt the place if he. would give him back what money he had paid on it with interest. I heard him say at one time in the horse-shed, that Tingley owed him $250 on the place.”

The acts and declarations of appellant, as disclosed by the testimony, are not only inconsistent with the defence set up in the answer, but they tend strongly to prove that, instead of being a good-faith purchaser of the land in question, he agreed to take the legal title and hold it simply as security for the amount advanced by him. Without further reference to'the testimony, suffice it to say that the conclusions of fact, upon which the decree is based, were fully warranted by the evidence.

Decree affirmed and appeal dismissed at the costs of the appellant.