Brown v. Reilly

McSherry, J., delivered the opinion of the Court. The appellant filed a bill of complaint against the appellees in the Circuit Court for Prince George’s County. ⁴⁹⁰ It alleged, in substance, that the appellant being indebted to the appellees in the sum of nine hundred and nineteen dollars and fifty-one cents, executed and delivered to Susannah Reilly, one of the appellees, a deed, absolute on its face, conveying certain real estate in fee simple; but that it Was understood and agreed between the parties at the time of the transaction that the conveyance was only to operate as a mortgage; and that, upon the payment to the appellees of the debts intended to be secured by the deed, the property would be reconveyed to the appellant. It further alleged that the appellant had tendered to the appellees the amount due to them, and had demanded a reconveyance, which they refused to make. The bill was subsequently amended and charged that the deed was fraudulent and void.

The relief prayed was that the deed be declared null and void upon the payment by the appellant to the appellees "of such sum as the Court may find due.” The appellees answered, and, whilst admitting the execution of the deed, denied most emphatically that the conveyance was intended as a security for any debts due to them by the appellant, and insisted that the transaction was a fair and bona fide sale of thirty-one acres of the land described in the deed. They disclaimed any title to an interest of the appellant in certain dower land also conveyed by the deed. In the testimony there is flat contradiction between the parties, and, if-the decision of the case depended upon harmonizing this conflicting evidence it might be exceedingly difficult to reach a satisfactory conclusion. Fortunately, however, the controversy can be determined without attempting to reconcile this repugnant proof.

It is the settled law in this State that a Court of equity will treat a deed which is absolute on its face as in fact a mortgage, if the parties designed it to operate in that ⁴⁹¹ way; and that parol evidence is admissible to prove their intention in this respect, Baugher vs. Merryman, 32 Md., 185 . Now, it appears by the appellant’s own testimony that he borrowed in September, 1874, from Mrs. Reilly, his aunt, the sum of seven hundred dollars, and some time afterwards gave her a mortgage upon the land in controversy and other land to secure the payment of fourteen hundred and sixty-six dollars and sixty-five cents: That he did not owe her the latter amount, but inserted it of his own accord as the consideration of the mortgage to protect the property against the claims of his other creditors: That subsequently he sold part of the land covered by the mortgage, and procured a release of the mortgage, and on the same day executed the deed in question for the pretended consideration of eighteen hundred and ninety-eight dollars and seven cents, conveying the thirty-one acres of land now claimed by him, and the interest owned by him in the dower land; and that the