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of the statute of frauds upon it, in Glas8 v. Hulbert, 102 Mass. 24. For the reasons there suggested, we do not regard the statute of frauds as interposing any insuperable obstacle to the granting of relief in such a case; because relief, if granted, is attained by setting aside the deed; and parol evidence is availed of to establish the equitable grounds for impeaching that instrument, and not for the purpose of setting up some other or different contract to be substituted in its place. If proper grounds exist and are shown for defeating the deed, the equities between the parties will be adjusted according to the nature of the transaction and the facts and circumstances of the case ; among which may be included the real agreement. It does not violate the statute of frauds, to admit parol evidence of the real agreement, as an element in the proof of fraud or other vice in the transaction, which is relied on to defeat the written instrument.

What will justify a court of chancery in setting aside a former deed, and giving the grantor an opportunity to redeem the land, on the ground that it was conveyed only for security, although no defeasance was taken, is a question of great difficulty, and one upon which there exists a considerable diversity of adjudication, as well as of opinion. In Story Eq; § 1018, it is stated in general terms to be “fraud, accident, and mistake." În 4 Kent Com. (6th ed.) 142, 143, it is laid down that "parol evidence is admissible in equity, to show that an absolute deed was intended as a mortgage, and that the defeasance was omitted or destroyed by fraud, surprise, or mistake."

"It is determined, on the statute of frauds, that, if a mortgage is intended by an absolute conveyance in one deed and a defeasance making it redeemable in another, the first is executed, and the party goes away with the defeasance, that is not within the statute of frauds.' Dixon v. Parker, 2 Ves. Sen. 219, 225. Similar declarations are to be found in Walker v. Walker, 2 Atk. 98, Joynes v. Statham, 3 Atk. 388, and Marwell v. Mountacute, Pre. Ch. 526 ; and adjudications in Washburn v. Merrills, 1 Day, 139, Daniels v. Alvord, 2 Root, 196, and Brainerd v. Brainerd, 15 Conn. 575; and see Story Eq. $ 768.

This indeed is only one form of application of the general rule of equity, that one, who has induced another to act upon the supposition that a writing had been or would be given, shall not take advantage of that act, and escape responsibility himself, by pleading the statute of frauds on account of the absence of such writing, which has been caused by his own fault. Besides the cases cited in Glass v. Hulbert, 102 Mass. 24, see Bartlett v. Pickersgill, 1 Eden, 515; S. C. 1 Cox Ch. 15; Browne on St. of Frauds, § 94. But this principle will not help the plaintiff here, because he does not allege that any defeasance was intended or expected ; and it is found by the report that the deed “was executed by the plaintiff intelligently, and not by accident or mistake, and that no fraud was practised to procure its execution, other than may be inferred” from the facts stated.

From those facts, and from the bill and answer, we think these points must be taken to be established, to wit, 1st. that the plaintiff had purchased the parcel of land in controversy and held a contract from Tirrill for its conveyance to himself upon payment of the sum of $5,500; 2d.

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that the money was paid to Tirrill, and the land conveyed by Tirrill to the plaintiff, in fulfilment of that contract; 3d, that the money was advanced by the defendant to the plaintiff as a loan, and the deed from the plaintiff to the defendant was given by way of security therefor. The report finds, “ from all the circumstances surrounding the transaction, and from the acts and declarations of the parties at the time, that the plaintiff believed and had reason to believe " this to be the case.

The defendant, in his answer, does not pretend that he ever made any contract, either with Tirrill or the plaintiff, by which a price was agreed upon to be paid by him as and for the purchase of the premises for himself. His only allegation to this point is, at most, indirect and equivocal. He denies that said estate was purchased of Tirrill for the plaintiff's benefit, “neither did this defendant agree to purchase it for the benefit of the plaintiff, but for the use and benefit of the defendant.” This is followed by an argumentative assertion of equitable title acquired as a resulting trust from payment of the purchase money, and that the deed from the plaintiff was given “for the purpose of vesting both the legal and equitable title in the defendant.” He does allege that he "agreed to pay Tirrill the said sum of $5,500 for the premises described in the bill, provided the title to said premises should stand in the defendant's name.' He alleges, with sufficient fulness and minuteness, that he refused to make a loan of the money to the plaintiff both “ before and at the time of said payment to said l'irrill,” and refused “ to allow the plaintiff to have any interest in said money, or the premises purchased therewith,' and that it was agreed that the premises should be conveyed in fee simple to the defendant, "and the plaintiff should not have any interest or title thereto." He further avers" that, before the plaintiff signed and executed his deed to this defendant, said deed was read in the presence and hearing of the plaintiff, and he was then and there informed that the same was an absolute conveyance, and that he ceased thereby to have any interest whatever therein." Taking the facts to be literally as thus alleged, they significantly suggest the inference that the money was advanced by the defendant for the accommodation of the plaintiff in his purchase of the land, and the deed given to the defendant for his security therefor ; but that it was agreed between them that the plaintiff should retain no legal right of redemption. He was to trust himself wholly to the good faith and forbearance of the defendant.

It is alleged in the bill, and not denied in the answer, that the land has been all the time in the occupation of the plaintiff

. We think it is also to be inferred that the land is of considerably greater value than the sum advanced by the defendant.

From the whole case we are satisfied that it was a transaction between borrower and lender, and not a real purchase of the land by the defendant. We are brought, then, to the question, Can equity relieve in such a

The decisions in the courts of the United States, and the opinions declared by its judges, are uniform in favor of the existence of the power, and the propriety of its exercise by a court of chancery. Hughes v. Edwards, 9 Wheat. 489; Sprigg v. Bank of Mount Pleasant, 14 Pet. 201, 208; Morris v. Nixon, 1 How. 118; Russell v. Southard, 12 How. 139; VOL. I.


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Taylor v. Luther, 2 Sumner, 228; Flagg v. Mann, Ib. 486; Jenkins v. Eldredge, 3 Story, 181; Bentley v. Phelps, 2 Woodb. & Min. 426; Wyman v. Babcock, 2 Curtis C. C. 386, 398 ; S. C. 19 How. 289. Although not bound by the authority of the courts of the United States, in a matter of this sort, still we deem it to be important that uniformity of interpretation and administration of both law and equity should prevail in the state and federal courts. We are disposed therefore to yield much deference to the decisions above referred to, and to follow them, unless we can see that they are not supported by sound principles of jurisprudence, or that they conflict with rules of law already settled by the decisions of our own courts.

We cannot concur in the doctrine advanced in some of the cases, that the subsequent attempt to retain the property, and refusal to permit it to be redeemed, constitute a fraud and breach of trust, which affords ground of jurisdiction and judicial interference. There can be no fraud or legal wrong in the breach of a trust from which the statute withholds the right of judicial recognition. Such conduct may sometimes appear to relate back, and give character to the original transaction, by showing, in that, an express intent to deceive and defraud. But ordinarily it will not be connected with the original transaction otherwise than constructively, or as involved in it as its legitimate consequence and natural fruit. In this aspect only can we regard it in the present case.

The decisions in the federal courts go to the full extent of affording relief, even in the absence of proof of express deceit or fraudulent purpose at the time of taking the deed, and although the instrument of defeasance “ be omitted by design upon mutual confidence between the parties.”

In Russell v. Southard, 12 How. 139, 148, it is declared to be the doctrine of the court, “ that, when it is alleged and proved that a loan on security was really intended, and the defendant sets up the loan as payment of purehase money, and the conveyance as a sale, both fraud and a vice in the consideration are sufficiently averred and proved to require a court of equity to hold the transaction to be a mortgage.” The conclusion of the

" that the transaction was in substance a loan of money upon security of the farm, and, being so, a court of equity is bound to look through the forms in which the contrivance of the lender has enveloped it, and declare the conveyance of the land to be a mortgage.”

This doctrine is analogous, if not identical with that which has so frequently been acted upon as to have become a general if not universal rule, in regard to conveyances of land where provision for reconveyance is made in the same or some contemporaneous instrument. In such cases, however carefully and explicitly the writings are made to set forth a sale with an agreement for repurchase, and to cut off and renounce all right of redemption or reconveyance otherwise, most courts have allowed parol evidence of the real nature of the transaction to be given, and, upon proof that the transaction was really and essentially upon the footing of a loan of money, or an advance for the accommodation of the grantor, have construed the instruments as constituting a mortgage; holding that any clause or stipulation therein, which purports to deprive the borrower of his equitable rights of redemption, is oppression, against the policy of the law, and to be set aside by the courts as void. Kent Com. (6th ed.) 159; Cruise

court was,

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those powers.

Dig. (Greenl. ed.) tit. xv. c. 1, § 21 ; 2 Washb. Real Prop. (3d ed.) 42; Williams on Real Prop. 353; Story Eq. § 1019; Adams Eq. 112; 3 Lead. Cas. in Eq. (3d Am. ed.), White & Tudor's notes to Thornbrough v. Baker, pp. 605 [*874] f seq. ; Hare & Wallace’s notes to S. C. pp. 624 [*894] & seq.

The rule has been frequently recognized in Massachusetts, where, until 1855, the courts have held their jurisdiction of foreclosure and redemption of mortgages to be limited to cases of a defeasance contained in the deed or some other instrument under seal. Erskine v. Townsend, 2 Mass. 493 ; Killeran v. Brown, 4 Mass. 443; Taylor v. Weld, 5 Mass. 109; Carey v. Rawson, 8 Mass. 159; Parks v. Hall, 2 Pick. 206, 211; Rice v. Rice, 4 Pick. 349; Flagg v. Mann, 14 Pick. 467, 478; Eaton v. Green, 22 Pick. 526. The case of Flagg v. Mann is explicit, not only upon the authority of the court thus to deal with the written instruments of the parties, but also upon the point of the competency of parol testimony to establish the facts by which to control their operation ; although, upon consideration of the parol testimony in that case, the court came to the conclusion that there was a sale in fact, and not a mere security for a loan.

By the St. of 1855, c. 194, § 1, jurisdiction was given to this court in equity " in all cases of fraud, and of conveyances or transfers of real estate in the nature of mortgages.” Gen. Sts. c. 113, § 2. The authority of the courts, under this clause, is ample. It is limited only by those considerations which guide courts of full chancery powers in the exercise.of all

If then the advantage taken of the borrower by the lender, in requiring of him an agreement that he will forego all right of redemption in case of non-payment at the stipulated time, or an absolute deed with a bond or certificate back, whiclı falsely recites the character of the transaction, representing it to be a sale of the land with a privilege of repurchase, be a sufficient ground for interference in equity by restricting the operation of the deed, and converting the writings into a mortgage, contrary to the expressed agreement, it is difficult to see why the court may not and ought not so interpose to defeat the same wrong, when it attempts to reach its object by the simpler process of an absolute deed alone. In each case the relief is contrary to the terms of the written agreement. In one case it is against the express words of the instrument or clause relied on as a defeasance, on the ground that those words are falsely written as a cover for the wrong practised, or an evasion of the right of redemption. In the other it is without an instrument or clause of defeasance, on the ground that it was oppressive and wrongful to withhold or omit the formal defearance. In strictness, there is no defeasance in either case. The wrong on the part of the lender or grantor, which gives the court its power over his deed, is the same in both. “For they who take a conveyance as a mortgage without any defeasance are guilty of a fraud.” Cotterell v. Purchase, Cas. temp. Talbot, 61. See also Barnhart v. Greenshields, 9 Moore P. C. 18; Baker v. Wind, 1 Ves. Sen. 160; Mellor v. Lees, 2 Atk. 494; Williams v. Owen, 5 Myl. & Cr. 303; Lincoln v, Wright, 4 De Gex & Jones, 16.

As a question of evidence, the principle is the same. In either case the

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jarol evidence is admitted, not to vary, add to, or contradict the writings, but to establish the fact of an inherent fault in the transaction or its consideration, which affords ground for avoiding the effect of the writings, by restricting their operation, or defeating them altogether. This is a general principle of evidence, well established and recognized both at law and in equity.

Stackpole v. Arnold, 11 Mass. 27; Fletcher v. Willard, 14 Pick. 464; 1 Greenl. Ev. $ 284; Perry on Trusts, $ 226.

The reasons for extending the doctrine, in equity, to absolute deeds, where there is no provision for reconveyance, are ably presented by Hare & Wallace in their notes to Woollam v. Hearn, 2 Lead. Cas. in Eq. (3d Am. ed.) 676, and to Thornbrough v. Baker, 3 lb. 624. See also Adams Eq. 111; 1 Sugd. Vend. (8th Am. ed.) Perkins's notes, pp. 267, 268, 302, 303. The doctrine thus extended is declared, in numerous decisions, to prevail in New York; also in Vermont and several other states. Mr. Washburn, in his chapter on Mortgages, § 1, has exhibited the law as held in the different states, in this particular; and the numerous references there made, as well as by the annotators in the other treatises which we have cited, render it superfluous to repeat them here. 2 Washb. Real Prop. (3d ed.) 35 f. seq.

Upon the whole, we are convinced that the doctrine may be adopted without violation of the statute of frauds, or of any principle of law or evidence; and, if properly guarded in administration, may prove a sound and salutary principle of equity jurisprudence. It is a power to be exercised with the utmost caution, and only when the grounds of interference are fully made out, so as to be clear from doubt.

It is not enough that the relation of borrower and lender, or debtor and creditor, existed at the time the transaction was entered upon. Negotiations, begun with a view to a loan or security for a debt, may fairly terminate in a sale of the property originally proposed for security. And if, without fraud, oppression, or unfair advantage taken, a sale is the real result, and not a form adopted as a cover or pretext, it should be sustained by the court. It is to the determination of this question that the parol evidence is mainly directed.

The chief inquiry is, in most cases, whether a debt was created by the transaction, or an existing debt, which formed or entered into the consideration, continued and kept alive afterwards. “If the purchaser, instead of taking the risk of the subject of the contract on himself, take a security for repayment of the principal, that will vitiate the transaction, and render it a mortgage security.” 1 Sugd. Vend. (8th Am. ed.) 302, in support of which the citations by Mr. Perkins are numerous. But any recognition of the debt as still subsisting, if clearly established, is equally efficacious ; as the receipt or demand of interest or part payment. Eaton v. Green, 22 Pick. 526, 530.

Although proof of the existence and continuance of the debt, for which the conveyance was made, if not decisive of the character of the transaction as a mortgage, is most influential to that effect; yet the absence of such proof is far from being conclusive to the contrary. Rice v. Rice, 4 Pick. 349; Flagg v. Mann, 14 Pick. 467, 478 ; Russell v. Southard, 12 How. 139; Brown v. Dewey, 1 Sandf. Ch. 56. When it is considered that the inquiry itself is supposed to be made necessary by the adoption of

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