Cole v. Cole

Stewart, J., delivered the opinion of the Court.- The bill alleges that the complainant advanced $1018 for the appellee, J. Alfred Cole, towards the payment of the purchase money for the lands mentioned in the proceedings, before the execution .of the deed to "him; and the sum of $260 subsequent thereto. That it was agreed between Salathiel O. Cole, the complainant, and the appellee, Joseph Alfred Cole, to whom the property was conveyed, that a mortgage should be executed to secure the re-payment of the moneys advanced. ' That after the appellee had acquired the title by deed, he refused to make the mortgage, and for the purpose of ³⁰³ defrauding tlie complainant, did, on tlie 9th of August, 1872, convey to his wife Dorcas Oole, one of the appellees, all his right and interest in the property. Tlie hill prays that the deed from Joseph Alfred Cole to his wife may he vacated, and the land sold to satisfy the claim of the complainant; or that the said Cole may he compelled to execute a mortgage to secure its payment, and to have such other relief as the case required. The appellees do not hy their answer specially deny the allegations of the bill; nor ,rely upon the Statute of Frauds, hut set up other defenses against the relief sought.

The proof in the cause, which has heen carefully examined, abundantly shows that the complainant did advance for Joseph Alfred Oole, at the time of the execution of the deed from Mordecai Ensor to him, the sum of one thousand and eighteen dollars, part of the consideration thereof, and that without this money the deed would not have heen executed. It is further proved that the complainant afterwards advanced the sum of two hundred and sixty dollars to Joseph Alfred Cole, and from all the circumstances it may fairly he inferred that this amount was intended to be secured in tlie same way as the former advance. The proof shows further, that it was agreed between the parties, that a mortgage of the lands in question should he executed hy Joseph Alfred Cole, to secure the complainant for his advances of money. It was further proved that a note was given at the time of the execution of the deed to stand as evidence -of the advance at that time, until a mortgage could he executed.

The giving of this note, under the circumstances, did not destroy the right of the complainant to havo the mortgage executed. Joseph Alfred Cole having obtained the said advance upon the agreement to execute a mortgage upon tlie land to secure the repayment, is hound in equity and good conscience to performance on his part; and his interest in the property ³⁰⁴ must be held answerable for the