
    Felts’s Appeal. [Hoysradt v. Felts.]
    On. an application to open a judgment, the defendant testified that he had conveyed a one-half interest in certain coal lands to plaintiff, and given a mortgage and the accompanying bond, upon which judgment was entered, to raise funds to pay off defendant’s indebtedness, and when plaintiff was repaid out of the rents of the property it was to be reeonveyed to defendant. Defendant was corroborated by one or more witnesses. The plaintiff denied that the transaction was other than it purported to be on the face of the written instruments, and was corroborated by several witnesses. The court held that the preponderance of the testimony was in favor of the plaintiff, and that the transaction was eonsummated on June 9,1881, and refused to open the judgment. Held that the action of the court should be affirmed.
    
      It seems that the Act of June 8,1881, providing that no defeasance to any deed, absolute upon its face, shall have the effect of reducing it to a mortgage, unless the defeasance is made at the time of the deed and is in writing, signed, etc., and recorded, etc., is not in violation of article i, § 10, of the constitution of the United States, forbidding any state to pass a law impairing the obligation of contracts.
    
    Feb. 27, 1889.
    Appeal, No. 75, July T. 1888, from a decree of O. P. Lackawanna Oo. discharging a rule to open a judgment wherein J. W. Hoysradt was plaintiff and Isaac B. Felts was defendant, at Oct. T. 1886, No. 250. Williams and McCollum, JJ., absent.
    The facts are stated in the following opinion of the court, by Connolly, J.:
    “ This case is before us on a rule to show cause why the judgment should not be opened and defendant let in to a defense.
    “ This judgment was entered on a bond dated June 9,1881, for the payment to the plaintiff of the just sum of $20,000, with lawful interest, said, principal sum being payable on the first day of June, 1886. This bond was entered to No. 250, October term, 1886, in the court of common pleas of Lackawanna county, on the 14th day of July, 1886, and a fi. fa. was issued thereon same day. August 20th of same year, this court granted a rule to show cause why the judgment should not be opened and defendant let into a defense. A voluminous amount of testimony was taken, both for and against this rule. We have gone over this vast amount of testimony with great care, in order to familiarize ourselves with all its details, and reconcile, if possible, its many contradictions.
    “We will first state the salient points of the testimony, as ■adduced on the part of the defendant, and then the testimony on behalf of the plaintiff.
    “ Isaac B. Felts, the defendant in this case, is the uncle of J. W. Hoysradt, the plaintiff. Mr. Felts, at the time this bond was given by him to Mr. Hoysradt, was the owner of a tract of coal land in the township of Lackawanna, county of Lackawanna, Pennsylvania. There was a number of liens against this land and among them a mortgage assigned to the Delaware, Lackawanna & Western Railroad Company (known throughout the testimony as bhe D. L. & W.) for the sum of $20,000. This mortgage was due, and the D. L. & W. were endeavoring to realize their money on it. On the 7th of June, 1881, the defendant went to Hudson, New York, the home of the plaintiff, with the intention, he says, of ■obtaining a loan with which to pay off this mortgage and other liens and claims against his real estate. There was nothing definite transacted on the 7th of June. On the morning of the 8th of June, they met again; and, subsequently, on the morning of the 9th of June, when a deed to Mr. Hoysradt for a one-half interest in this bract of land was given by Mr. Felts ; also a mortgage for $20,000, and a power of attorney to collect coal royalties.
    “ Mr. Felts, in his own behalf, swears that, when he arrived in Hudson on the 7th of June, 1881, he proceeded to the office of Mr. Hoysradt; that Mr. Hoysradt was busy, and no business of any importance was transacted that day; they met again on the morning of the 8th and engaged in conversation about the loan Mr. Felts desired. They were joined by Frank Hoysradt, a brother of the plaintiff, about this time, and Mr. Felts testifies he and Frank talked the matter over, and came to an agreement, viz: That J. W. Hoysradt was to take a deed, a bond and mortgage for $20,000, and furnish money enough to pay all Mr. Felts’s indebtedness and if they could get the Hunt lease in “ working operation ” Felts was to have a certain proportion of the royalties, about ten or fifteen per cent, to live on, and the balance should be applied on the bonds and mortgages ; and, when Mr. Hoysradt got his pay, the property should be reconveyed to Felts. This was a talk between Isaac Felts and Frank. Hoysradt, and Felts testifies that he supposes Frank Hoysradt told this to hís brother, J. W. Hoysradt, the plaintiff. (A portion of this land was laid out in town lots, and, in the deed and mortgage-, referred to, the surface of certain lots and blocks were to be reserved to Mr. Felts.) This, Mr. Felts says, was on the 8th of June, 1881,. between 8 and 11 o’clock a. m. After this talk between him and Frank, they went to the office where J. W. Hoysradt, the plaintiff, was, and, after they got there, Albert Hoysradt, a son of plaintiff,, and a man named Jordan, commenced to draw the papers and he supposed Frank Hoysradt directed the drawing of the papers.
    “ Mr. Felts further testifies that he was induced to go to Hudson on the 7th of June, 1881, through the representations of Frank Hoysradt, who told him the money was ready for him any time on four or five days’ notice, and that Frank Hoysradt had telegraphed him to come on, which he did. That when he arrived there Mr. Hoysradt wanted him to give him a deed for the entire property, which he refused and took his satchel and started for home, but was. induced by Frank Hoysradt to remain, which he did. That he at no time, during the transaction of that business, agreed to deed his. property to J. "W". Hoysradt except on condition that he was to have a reconveyance of the same as soon as the rents and royalties would pay the moneys advanced by Mr. Hoysradt.
    “Frank Hoysradt testifies, on behalf of the defendant, that he was the agent of his brother J. ~W. Hoysradt in this transaction;: that it was through him, or rather a telegram which his brother J. W. wrote and signed his name thereto, that Mr. Felts was-induced to come to Hudson and that he was to induce him to. sign these papers; that he was present at all conversations and furnished the data from which the scriveners made the deed, mortgage, bond' and power of attorney, and that for so doing he was to receive from his brother a one-twelfth or one-sixteenth interest in the property. He further testifies that Mr. Felts was so worked up about this-matter and in such a nervous condition that he was instructed by J. "W". Hoysradt to keep a close watch on Mr. Felts for fear he-would commit suicide. That after the papers were made out, Mr.. Felts refused to sign them and that it was only after he had assured 1dm that they were all right, and as they had agreed upon, that he finally did so.”
    The court then reviewed the testimony of J. W. Hoysradt, the plaintiff, denying the allegations of the defendant, that the conveyance was to secure a loan and that there was to be a reconveyance. Plaintiff’s testimony was further .to the effect that the transaction was consumated on June 9, 1881.
    The court then continued, reviewing the testimony of plaintiff: '“He also testifies that Frank Hoysradt was not his agent or confidant in this transaction; that he never consulted with him in reference to the matter, and that whatever interest, if any, Frank took in the matter, it was on his own motion and not his; that the telegram requesting Isaac Felts to come to Hudson was written to him but at the request of Frank; that he never promised or agreed to give Frank a twelfth or sixteenth interest or any other interest in this property and that Frank was not present at, nor did he hear, the negotiations between himself and Isaac Felts in reference to this property. That Mr. P. M. Jordan, one of the persons present and who drew some of these papers is dead. He died before the testimony in this case was taken.
    “ On behalf of the plaintiff, Judge John Cadman testifies that he was consulted by the plaintiff, J. w. Hoysradt, that he suggested the giving of a deed and bond and mortgage; that there was nothing ever mentioned by Mr. Felts or anyone else to him, that this was not an absolute and unconditional sale of a one-half interest in the property and a mortgage for $20,000. He also testifies that .Frank Hoysradt was not in his room .that day except when he witnessed the papers after they were made out and signed; that Frank heard none of the conversations nor did he have a word to say about the negotiations whatever.
    “Albert Hoysradt corroborates his father and Judge Cadman in every thing which they testify to, as having taken place when he was present. He also testifies that Frank Hoysradt was not present, .at any of the conferences; that he furnished no data from which lie, Judge Cadman, or Mr. Jordan drew any of the papers, and in many other respects flatly contradicts the testimony both of Frank Hoysradt and Isaac B. Felts.
    “ J. W. Hoysradt also testifies that, on Monday, the 13th day of June, 1881, he, Mr. Felts and Mr. Green having looked this property over on the Saturday previous, directed E. B. Sturges, Esq., his counsel, to make a deed to Mr. Felts for the surface of what is known in the testimony as the ‘ Gore ’ piece. While viewing this property on the 11th of June, Mr. Hoysradt states that Mr. Felts informed him that, on a knoll near the £ Gore ’ piece, stood his grandfather’s house, and that his (Felts’s) mother had planted some trees there and he would like some day to build a house on that site. Mr. Hoysradt said: £Yery well, I will deed it to you,’ and he instructed Mr. Sturges to make a deed to Mr. Felts for the surface .and the £ Gore ’ tract which was accordingly done on the 13th of June, 1881. It was at that time also discovered that the reservations in the deed, with reference to the house that Mr. Felts lived in, and the other house, that the houses only were reserved and not the land; this was also corrected and included in the deed from Mr. Hoysradt to Mr. Felts dated June 13th, 1881. In addition to this, Mr. Hoysradt testifies that, in September, 1881, Mr. Felts made an offer to him to purchase his interest in this property and pay him $60,000 for the same; which he declined. That on the first day of April, 1882, Mr. Felts called on him at his office, in Hudson, N. Y., and asked him to name a price he would sell his interest in this property for. Mr. Hoysradt states that he informed Mr. Felts that he did not care to do it; that then Mr. Felts wanted him to name a price he would give or take, which Mr. Hoysradt declined to do, but asked Mr. Felts to name a price he would give or take and he would consider it; that'Mr. Felts fiew into a passion and said he was going home and was to commence proceedings for a division of the property. That on the 14th of January, 1885, N. Taylor, Esq., attorney for Mr. Felts, made him an offer in behalf of Isaac Felts of $125,000 for his interest in this property which he also declined.
    “ Coupled with the offers made in this case, the foregoing is a resume of the main facts in this case as developed by the testimony. It is true a number of witnesses, besides those already referred to herein, were sworn, but their testimony is only important as to certain details, which are in many instances only slightly corroborative of the witness of the plaintiff and defendant. We do not consider this testimony of such vital importance to the disposition of this rule as to make a review of it necessary.
    “ The main features of the defense in this case, and the reasons upon which they rely to substantiate the rule in this case, are as follows:
    “1st. Whether the contract between Hoysradt and Felts was made on the 8th day of June, 1881, or not until the next day. We are emphatically of the opinion that the contract or agreement was not made until the 9th day of June, 1881; that, although the matter was talked of between the parties on the Ith and 8th days of.June, 1881, yet there was no final agreement or conclusion reached before the morning of June 9th, 1881, when the papers were signed, acknowledged and delivered to Albert Hoysradt to be held in escrow.
    “ 2d. Whether Frank Hoysradt was authorized to act for J. W. Hoysradt in making the arrangements with Isaac 33. Fe3ts.
    “ From the overwhelming testimony of J. W. Hoysradt, Judge Cadman and Albert Hoysradt, and the manner in which they contradict Frank Hoysradt, and from his own testimony, and the manner in which he acted, and also the reasons which he alleges prompted and actuated him in the parts which he alleges he figured so prominently in this transaction, we are disposed to place but very little credence in his testimony and find that he was not acting for J. W. Hoysradt in this transaction, and that the contract between Hoysradt and Felts was not made through him.
    
      “ 3d. Whether the contract made was for a loan and the securing of the same by pledges satisfactory to J. W. Hoysradt, or was it for an absolute transfer of any part of the property?
    “ From all the evidence in the case, we find that Isaac B. Felts made an absolute and unconditional deed for a one-half interest in this property to J. W. Hoysradt to the 9th day of June, 1881, for a consideration of $20,000, and a bond and mortgage on the remaining undivided one-half to secure Mr. Hoysradt for the sum of about $20,000, which Mr. Hoysradt agreed to advance for Mr. Felts to pay off certain liens, etc., which were against his property, one of which liens an execution had been issued upon and the real estate of the defendant was taken into execution and was advertised to be sold two days later than this contract or agreement, viz., June 11, 1881.
    “4th. Whether or not there was a conspiracy to defraud Felts?
    “ The only evidence in the case that in any manner tends to show a conspiracy, in our opinion, is the testimony of Frank Hoysradt. As we have previously stated, we place very little credence in the testimony of Frank Hoysradt, and from the manner in which his testimony has been contradicted, and his own admission as to the manner in which he acted in this whole transaction, we cannot find from the testimony that there was a conspiracy to defraud Isaac B. Felts.
    “We are asked by the defendant’s counsel to decide whether or not an Act approved the 8th day of June, 1881, P. L. 84, being ‘An Act relating to and defining defeasances in this Commonwealth,’ is invalid and inoperative, because it is in violation of the provisions contained in § 10, paragraph i, of the constitution of the United States, forbidding any state to pass a law impairing the obligation of contracts. This Act, as we construe it, does not impair the obligation of contracts; it simply provides that when such contracts are made after its passage, no defeasance to any deed for real estate, absolute upon its face, shall have the effect of reducing it to a mortgage, unless the defeasance is made at the time the deed is made, and in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and is recorded, etc. How this impairs the obligation of a contract, we are at a loss to see; it simply provides that, after its passage, to reduce a deed for real estate, absolute upon its face, to a mortgage, certain formalities must be complied with. This, we believe, is in the power of the Legislature and in nowise conflicts with the provisions of the section of the constitution of the United States above referred to.
    “We do not contend, for an instant, that, prior to the passage of the Act, June 8, 1881, P. L. 84, such defeasible character in a conveyance could be shown by oral testimony. But we find that this deed was not only made but was delivered subsequent to the passage of that Act; therefore the rule laid down in Sweetzer’s Appeal, 71 Pa. 264, and in other cases, need not be followed.
    “ We have studied this case carefully, and have weighed the testimony adduced by the defendant and the plaintiff, and, after a careful consideration of the same, we find that there is a preponderance of testimony in favor of the plaintiff in this case. It is true there is a conflict in the testimony, but, viewing it ail together, and comparing the many contradictions, we repeat, there is a preponderance of the testimony in favor of the plaintiff.
    “And now, to wit, April 23d, 1888, the rule -to show cause why the judgment in this case should not be opened and defendant let into a defense is discharged.”
    
      The assignment of error specified the action of the court in refusing an issue and discharging the rule, to open the judgment.
    
      A. Ricketts and Edward Merrifield, with them John N. Scrogg and E. N. Willard for appellant.
    The character of the papers shows that the transaction was a loan. Hamet v. Dundas, 4 Pa. 178.
    The evidence of the appellant is consistent with the known facts and circumstances of the case.
    The appellee took full security in the ordinary form for all, the money he advanced. AU’the money furnished by appellant, being secured by the bonds and mortgages, there was nothing paid as a consideration for the deed. And without the payment of a consideration, a deed of bargain and sale is inoperative. Caldwell v. Pulton, 31 Pa. 475; Boardman v. Dean, 34 Pa. 252.
    The present case is unlike Earley’s Ap., 90 Pa. 321, and kindred cases, where it was sought to open a judgment upon the oath of the defendant alone against the oath of the other party supported by the written instrument.
    The Act of June 8, 1881, is unconstitutional as impairing the obligation of contracts.
    
      W. H. Jessup, of Jessups & Hand, with them E. B. Sturges, for appellee.
    The defense attempted in the case is barred by the Act of June 8, 1881. The deed was executed and delivered after the Act was passed. The Act was intended to abolish utterly the oral defeasance. Sonkey v. Hawley, 118 Pa. 30.
    This proceeding is an equitable one and the answer of the appellee must be overcome by the evidence of two credible witnesses, and the evidence must be such as would move a chancellor to make a decree. Knarr v. Elgren, 44 Leg. Int. 332, affirmed in Elgren’s Ap., not reported. As to fraud, see Thorne v. Warflein, 100 Pa. 527; Murray v. R. R., 103 Pa. 37. To reform a written instrument, Spencer v. Colt, 89 Pa. 314.
    In this appeal the court has only to determine whether the discretion of the court below has been rightly exercised. Earley’s Ap., 90 Pa. 323.
    March 18, 1889.
   Per Curiam,

There is no occasion for our discussing this vast mass of testimony. The opinion of the learned judge below refusing to open the judgment, is so full, clear and satisfactory, that we affirm the case for the reasons given by him.

The order discharging the rule is affirmed, and the appeal dismissed at the costs of the appellant.  