Herrick's Admr. v. Teachout

Munson, J.

The bill is brought to foreclose the defendant’s equity of redemption in certain premises therein described. The cross-bill prays for a sale of the premises and payment from its avails. The agreement connected with the transfer was in parol, and is to be ascertained from the findings of the master. The report shows that L. D. Herrick, the orator’s intestate, took deeds of the farm in question from the defendant and his wife and the defendant’s assignee in insolvency, upon an agreement that he would relieve the estate from certain claims and pay the incumbrances resting upon the farm, and *200 deed the farm to the defendant upon his being reimbursed for these expenditures; it being also agreed that in default of such reimbursement the farm might be sold, and the proceeds be applied in satisfaction of the sums so expended, and the balance, if any, be paid to the defendant. The Court of Chancery dismissed the cross-bill, and decreed .a foreclosure in default of payment of the smaller of two sums reported by the master-The defendant appeals. The orator asks no more than an affirmance of the decree.

The position of the parties will be better understood if reference be had to some further facts. L. D. Herrick died intestate, March 9th, 1896, leaving as his only heirs the orator, E. D. Herrick, and Lucy Teachout, the defendant’s wife. MrsTeachout died February 20th, 1897, leaving a will by which she devised her interest in these premises to her husband.

The orator claims that the transaction in question was a mortgage, and that Herrick obtained only a chattel interest in the premises, and not such an interest as would vest in his heirs. The defendant claims that the transaction did not constitute a mortgage, but that Herrick became seized by virtue of his conveyances, of an interest in the farm equal to the amount expended, which' interest vested in his heirs at his death; and that the defendant is now the owner of one-half of that interest by virtue of Lucy Teachout’s will, and entitled to a deed thereof upon paying one-half of the amount paid out by Herrick. The orator claims that inasmuch as this was a mortgage, the appeal was improperly taken, and should be dismissed. The defendant contends that, even if it be considered a mortgage, it is not a conveyance of the character contemplated by V. S. 981 relating to chancery appeals.

The language of the main finding is that Herrick was to' “reconvey” the farm to Teachout. This is not determinative of the nature of the transaction, for a conveyance might be in *201 tended either as the discharge of a mortgage or a transfer of title. Courts have often found it difficult to determine whether the transaction in question was a mortgage or am absolute sale with a right of repurchase. It is said that the intention of the parties must govern whenever it can be ascertained, and that no form of words will be conclusive upon the courts. Chase’s Case, 17 Am. Dec. 300 , note. It is certain that the existence of some debt or obligation to be secured is essential to the creation of a mortgage, but the question whether this requisite exists is generally included in the question of intention. The master says that Herrick entered into' this arrangement in order to save thé farm as a home for his daughter. This affords nothing determinative, for it was not necessary that he should buy the farm to accomplish that purpose. The natural conclusion seems to be that he intended to- save the place by relieving it from the existing incumbrances, becoming himself the creditor, of Teachout, and giving him a further opportunity to redeem. Perhaps this view is required by the additional statement that Herrick agreed to stock the farm, and that whatever he paid for the same “was to be a lien on the farm the same as other money paid out by him for the benefit of Teachout.”

It is clear that, if the situation of the parties had remained unchanged, and the question had arisen between P. D. Herrick and the defendant, the transaction would have been held a mort • gage under these findings, however inconclusive they may be regarded. It is said that in all doubtful cases the law will construe the contract to be a mortgage, because such a construction is most likely to attain the ends of justice and prevent fraud and oppression. It is evidently feared that an application of this rule to the present case in- the changed circumstances-of the parties will work injustice to 'the defendant, rather1 than afford him protection. But the ruling cannot be controlled by this fact; for the contract must be construed in the light of the circumstances which existed at its date, and must *202 stand as it was made; whatever the changes affecting the parties in their relations to it.

Although the conveyance is held to be a mortgage, we consider the case properly here. We think the provision in regard to appeals in foreclosure cases applies only to mortgages which are such upon their face, or recognized as such by the parties, and not to cases where the character of the instrument is in issue.

The orator is entitled to a decree of foreclosure in default of payment, notwithstanding the provision for a sale of the premises. The power of sale is a cumulative remedy, and does not deprive the mortgagee of the right to foreclose. Jones on Mort, § 1773. The mortgage can be foreclosed by the orator, as administrator of T. D. Herrick. V. S. 2464. The other question touched upon is not in the case. It is. for the Probate Court to determine the distribution in the first instance, Decree affirmed cmd cause remanded. Let a further time for redemption be fixed below.