
    WILLIAM H. BURR vs. JOHN G. MEYERS.
    In Equity. —
    No. 4063.
    I. The well-known rule in equity requires that complainant shall overcome the denial of the.defendant responsive to the bill by the testimony of witnesses to the fact or by a witness and strong corroborating circumstances.
    II. Courts will be cautious in permitting the terms of written instruments to be varied by parol testimony, and if a doubt exists, they will return to the writing of the parties, and will be guided by it as to the contract and its meaning.
    STATEMENT OE THE CASE.
    In the mouth of July, 1871, the complainant purchased house No. 11 Grant Place, in the city of Washington, from the defendant, for $11,000. The deed and the possession were not to be delivered until November following. The house not being quite finished, the cost of finishing the same and of paying off incumbrances upon the premises, amounting to several thousand dollars, was assumed by the complainant, and was to be deducted from the purchase-money, and a settlement was to be made when the deed was delivered. The deed was given November 7, 1871, and in February, 1872, a small balance of the account was due the defendant when a further incumbrance upon the premises was - discovered, amounting to $6,000, in favor of a certain copartnership named Mohun & Sons. Negotiations were entered upon with Mohun & Sons, through Richard Wallach, with a view of selling to them house No 28 Grant Place, the legal title to which was vested in Mrs. Meyers, wife of the defendant, for the sum of $13,000, and the newly-discovered indebtedness upon house No. 11 was to go as part payment of the purchase-money, and that incumbrance was to be released. The Mohuns finally declined to take the property, and the defendant, being willing to prevent loss to the complainant, conveyed to him said house and lot No. 28 upon a consideration, as ■expressed in the deed, of $12,000, the deed being upon its face absolute in fee-simple. Burr agreed to pay Mrs. Meyers $1,500, also to payoff the incumbrance on house No. 11, and to pay off a building-association lien upon house No. 28, and the cost of such work upon the latter as would be necessary to complete the building, which at that time was in some respects unfinished. An. account was to be stated, in which defendant was to be credited with the consideration to be paid for the property, and the payments made by Burr were to be charged against him. Burr went on and completed the building and sold the same to one John Wheeler for $11,000. When Burr and Meyers entered upon a settlement of their accounts, a dispute arose between them about the items, which need not be further mentioned, except as to the purchase of house No. 28. Meyers was to occupy this house from February 21 until August 1, and for this was to allow Burr $500 on account of the purchase-money. Meyers says that he agreed to convey the house No. 28 for the real consideration of $13,000, but that the amount of $12,000 was inserted in the deed in order to avoid the expense of a revenue stamp for a greater.sum; and he claims that in the settlement he ought to be credited with $12,500, after deducting the $500 for the use and occupation of the premises. The complainant claims that the deed to him of house No. 28, while on its face conveying an absolute fee-simple title, was merely intended as a trust, and that the value thereof was to be ascertained by a sale of the property to the best advantage, and this amount was to constitute the true consideration for the conveyance, and that only the amount of such purchase-money was to be accounted for in a settlement between him and Meyers. Thetestimony was conflicting in regard to this parol agreement, the complainant testifying to it in his deposition and averring it in his bill, and the defendant denying it both in his answer and testimony. There are other items of evidence giving some color to the claims of both complainant and defendant. The auditor allowed Meyers $12,500 for house No. 28, and reported a balance due complainant upon the whole account of $781.53. Exceptions were filed by complainant to the auditor’s report, but the exceptions were overruled and the report ratified and confirmed. From this order complainant has brought the case here by an appeal.
    
      
      C. H. Armes for complainant:
    That a deed absolute on its face was intended only as security may be shown by parol testimony. See Babcock vs. Wyman, 19 How., 289, and cases there cited.
    The bill in this case alleges that the conveyance was made as security and proceeds to specify the principal sums paid and advanced in the premises, and the answer does not deny these allegations.
    In the case in 19 Howard, the bill alleged that Babcock had made advances of money for Wyman, and agreed to make further advances; that Wyman “conveyed the estate to Babcock, it being expressly agreed by Babcock that, notwithstanding the form of the conveyance, it should stand as security only for the sums due to him.” 19 How., 294.
    The deed was in form an absolute conveyance, and the agreement that it was to be regarded as security was shown by parol testimony. In the essential features of this case it is like the above case in Howard. In that case the Supreme Court cites the case of Russell vs. Southard, 12 How., 154, where the court say:
    “The first question is, whether this transaction was a mortgage or a sale.
    “ It is insisted, on behalf of the defendants, that this question is to be determined by inspection of the written papers alone, oral evidence not being admissible to contra.dict, vary, or add to their contents. But we have no doubt extraneous evidence is admissible to inform the court of every material fact known to the parties when the deed and memorandum were executed. This is clear, both upon .principle and authority. To insist on what was really a mortgage as a sale, is in equity a fraud, which cannot be successfully practiced under, the shelter of any written papers, however precise and complete they may appear to be. In Conway vs. Alexander, 7 Cranch, 238, Marshall, C. J., says: 'Having made these observations on the deed itself, the court will proceed to examine those intrinsic circumstances, which are to determine whether it was a sale or mortgage;’ and in Morris vs. Nixon, 1 How., 126, it is stated: ‘ The charge against Nixon is, substantially, a fraudulent attempt to convert that into an absolute sale which was originally meant to be a security for a loan. It is in this view of the case that the evidence is admitted to ascertain the truth of the transaction, though the deed be absolute on its face.’ ”
    After citing several other authorities, the court further say: “It is admitted that thé authorities on the question before us are conflicting in this country and in England, but as this court in several cases has decided the point, and it is now and has been for several years past a rule of decision, we are not prepared to balance the State authorities with the view of ascertaining on which side the scale preponderates.”
    Under these authorities, it would seem beyond doubt that Meyers would have a right in equity to redeem the property. But a court of equity will, for the grantee as well as for the grantor, take cognizance of such cases, ascertain the real object and intention of the conveyance, and decree accordingly. 9 Wheat., 491.
    If, then, the conveyance was as security, so much only as was realized on the sale of the property by Burr, viz, $11,000, should have been credited in the account. By such credit only could the security contemplated by the parties be effected.
    
      Hanna & Johnston for defendant.
   Mr. Justice Humphreys

delivered the opinion of the court:

Complainant is the grantee, in two deeds of conveyance, of houses known as Nos. 11 and 28 Grant Place, in Washington City. The deeds are absolute on their face, and express a given consideration. The whole case shows a complication of accounts between the parties, and that the consideration of the deed to house 28 was different to that expressed therein. After the sale of the first house (No. 11) to complainant, it was found that it was encumbered to a large amount .by mortgages. He had already paid the purchase-money, except a few hundred dollars. To secure complainant against loss on account of the incumbrances, defendant conveyed the house No. 28 to him by deed absolute. Complainant now comes with the allegation that the last deed to house 28, although absolute ou its face, was intended by the parties as a trust; that complainant was to sell the same j and if it failed to realize the amount paid out by him, the defendant was to sustain the loss of the difference 5 and he claims a large amount as the loss. He sold house 28 for $11,000. The consideration in the deed was expressed to be .$12,000. Defendant contends that the true consideration was $13,000. Complainant contends that defendant is indebted to him in the sum of three or four thousand dollars, on account of the moneys paid out by him in the purchase of lot 11, in discharging the incumbrances and liens thereon, and the failure of house 28 to yield in the sale thereof sufficient te pay his advances. Defendant insists that c'omplainant bought house 28. It appearing in the case, as made, that there were •some matters proper for an account between the parties, it was referred to a special auditor and master to state the account. He found the fact to be, from the agreement of both parties, that the consideration was different from that expressed in the deed; that the amount to be credited to the defendant on account of house 28 was $12,500. The auditor and master treated the deed as an absolute conveyance, and the chancellor looked upon it in the same light by confirming the report. Complainant seeks relief against his own acceptance of a conveyance of title, and he must show a clear error entitling him to avoid it. He asks relief from the effects of a. written instrum ent, and must sho w som e undeniable facts either positive or clearly inferential, before he can vary or alter the written instrument. There was-a conflict of testimony. Complainant alleges and defendant denies. The well-known rule-requires that complainant shall overcome the denial by witnesses to the fact, or by a witness and strong corroborating circumstances. The master and auditor found the facts or circumstances to be wanting to overthrow defendant’s answer. The chancellor followed the finding of the master, as-he was bound to do, unless it had been shown that the auditor was clearly or inferentially wrong, and we are bound to follow the finding of the chancellor, unless his error can be pointed out. This the appellant has undertaken to do; but we think that he has not succeeded -in doing so. The deeds, are recognized in law as solemn undertakings. Even where-the evidence shows that an account should be had between parties, the written memoranda made and received by them will be taken as the basis of a decree or judgment. Complainant would not be willing to abandon his rights under the deed to house 28. Courts must be cautious in undertaking to permit the terms of written instruments to be varied by parol testimony. Even under proper circumstances of allowing parol testimony, if a doubt still exists, they will return to the writings of the parties, and look to them to be thereby guided.

The decree (which speaks for itself) is therefore affirmed.  