JOSIAH ELLIOTT vs. DAVID A. MAXWELL.
Where a party executes a deed, knowing it to be absolute, it must be held to be absolute, unless strong and clear proof can be adduced of mistake or imposition.
To turn an absolute deed into a mortgage oh the ground of inadequacy of price, the pnce must be grossly inadequate.
The cases of Lewis v Owen, 1 Ire. Eq. 290, King v Kincey, 1 Ire Eq. 187 and McLaunn v Wright,2 Ire. Eq. 94, cited and approved.
Appeal from the Court of Equity of Iredell County, Spring Term, 1851, his Honor Judge Battle presiding.
The bill states, that the plaintiff, being indebted to the defendant in a small sum of money, to wit, twenty-two-dollars and fifty cents, gave him his note for the amount: That some short time thereafter, the defendant called on the plaintiff and requested him to secure the payment of the debt by conveying to him the land, on which he then lived, to which he agreed ; and accordingly a.deed of.con-veyapce was drawn, which is absolute on its face. The *247plaintiff avers, that the said conveyance was intended only as a security tor the money due oti his note, and that it was expressly agreed between him and the defendant, that whensoever he paid up the money the land should be re-conveyed to him : that at the time the deed was drawn, he mentioned to the writer of it, that such was the agreement and wished him to so state it in the deed, when he was an-i swered, it was pot necessary, as the defendant only wanted his money and would reconvey the land when that wag paid. The bill further charges, that he by agreement with the defendant, continued on the land, raising crops and disposing of them as he pleased; and l! that he has fully ppid off and discharged said notethat the defendant brought an action of ejectment against him, recovered judgment, and threatens to turn the plaintiff out of possession. 1$ prays injunction apd a decree for a reconveyance of the land-
The answer denies, that the conveyance was made for the purpose of securing the payment of the note, set forth in the complainant’s bill; but that when he called upon the plaintiff to pay or secure the same, he, the plaintiff, himself proposed to sell the land to him absolutely m discharge of the note. He denies, that, either before, or after, the sale and execution of the conveyance, or at the time, any promise or agreement was made between him and the plaintiff that the conveyance should be in trust, or that the defendant was to reconvey the land, when the note was discharged. On the. contrary, that McKen, who drew the deed, read it oyer to the plaintiff and explained to him its operation and effect — that it conveyed to the defendant absolutely all the interest he had in the land. The defendant denies, that, since the execution of the deed, he has received from the plaintiff one cent of money in discharge of the note, which has been surrendered to the plaintiff'. The defendant denies, that it was agreed between him and the plaintiff that, the la.tter should continue on the land and pultiyate iff up-*248til he paid off the note. He admits he did continue on the land, but it was as his tenant and by special agreement from year to year. He admits his suit in ejectment, his judgment, &c.
Upon the coming in of the answer, a motion was made to dissolve the injunction, which was refused, the injunction continued to the hearing and replication taken to the answer. The cause was set for hearing, and transmitted to the Supreme Court.
Boyden, for the plaintiff.
Avery and Craig, for the defendant,
Nash, J.
The answer fully meets the allegations oí the plaintiffs bill. The deposition of McKen, who drew the deed of conveyance, states, that the deed was drawn for the absolute conveyance of the land by the directions of the parties; and that it was read over to the plaintiff, explained to him, and that he was told it conveyed to the defendant, absolutely, all his interest in the land : that, before the deed was drawn, the plaintiff proposed to the defendant to mortgage the land to him as security for the debt; and that the defendant refused to take it upon that condition, He denies, that the plaintiff wished that the deed should express upon its- face any conditions, and that any conditions were mentioned of that character, or any conditions at all. According to this testimony, and it is not contradicted, the plaintiff executed the deed with a.full knowledge of its contents — that it was absolute, and conveyed to the defendant all the interest he had in the land. Solemn instruments between parties, able to contract, must in the presumption of every Court be taken to declare the truth in regard to the subject-matter of their contract, un- , til-error, mistake, or imposition be shown.- And where the conveyance is absolute on its face, it- must be held to be absolute, until strong and clear proof be shown to the con*249trary. The testimony of McKen is corroborated by the bill. It states distinctly that the plantiff executed the conveyance, knowing it was an absolute deed ; for, it states, that the plaintiff wished the conditions to be inserted in the face of the deed, This, it is true, is denied hy the writer; Lewis v Owen, 1 Ire. Eq., 290, King v Kincey, 1 Do. 187, There is no evidence of any inadequacy of price, which sometimes influences the action of a Court of Equity in these matters. The land was held by the plaintiff in right' of his wife, and the whole amounted to but seventy five acres. To turn an absolute deed into a mortgage on that ground, the price must be grossly inadequate; McLaurin v Wright, 2 Ire. Eq., 94. It there was satisfactory evidence of a previous agreement for a mortgage, the Court could not declare the deed here such, in the absence of all evidence of imposidon, and where it is shown, that, at the time of its execution, the plaintiff knew he was executing an absolute deed.
Per Curiam. Bill dismissed with costs..