Brown v. Hight

33 App. D.C. 260, 1909 U.S. App. LEXIS 6060

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 13, 1909
• Docket: No. 1976
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The agreement and assignment of November 16th were concurrently executed, were in consummation of the same transaction, and must be read together in reaching a determination as to their import and meaning. Reading them together in the light of the surrounding circumstances, we think it reasonably clear that they evidence a loan from complainant to Mercer, and not an exchange and loan, as contended by complainant. Mercer was in such financial straits that he almost lacked bread; He wanted money, not land. He knew nothing whatever about the Baltimore property, never having seen it and never having made any investigation concerning it. This property belonged to the wife of complainant, and the title remained in her continuously thereafter.. Complainant testified that he considered it worth $1,000 to him, but the record shows that in 1904 its value was fixed in partition proceedings at $450. The complainant, on December 19, 1906, tendered to Mr. McKenney, as the representative of Mercer, a deed from his wife and himself, dated November 14, 1905, hut not acknowledged until November 15, 1906, purporting to convey to said Mercer the Baltimore lot. The tender was made upon condition of the re payment of the sum named in said agreement of November 16, 1905. At the time of this transaction the complainant knew the amount that would be paid to Mercer upon his uncle’s death, and he knew that the uncle was then sixty-six years old, for Baker had ascertained that fact and imparted the information to complainant. Since that information was not obtained through Mr. McKenney, it follows that it was obtained from some other source. It is stated in the answers that the annuitant was then in feeble health, and, considering the time that intervened between the 10th of October, when Mercer wrote to Mr. McKenney for information, and the time the transaction was consummated, it is quite likely that complainant had become fully informed as to the annuitant’s condition. It is true he testifies that he had no knowledge concerning the matter, but the evidence of Baker and-the surrounding circumstances are inconsistent with his recollection. He does admit, however, that he knew that there were outstanding judgments against Mercer, and it appears that he obtained the advice of his attorney as to whether or not an assignment of Mercer’s interest in said bequest would be good as against those judgments. Why should he be willing to loan $275 on the Baltimore lot, which, according to his present contention, he exchanged for the legacy, when he was unwilling to loan that or any other amount on the legacy ? Surely, being a man of business, he considered the legacy of greater value than the lot, else he would not have exchanged at all. We think the reason quite apparent. Having learned of the judgments against Mercer, he was unwilling to incur the risk of litigation by attempting to loan anything on the strength of the legacy unless he had what purported to be on its face an absolute assignment of that legacy. The Baltimore property, which, of course, was of no more use to Mercer than his legacy, was resorted to as a convenient expedient or device to secure the safety of the loan. It will be noticed that under the agreement, if Mercer repaid the loan within one year, he was to receive a deed to the Baltimore lot. If complainant was willing to surrender the Baltimore lot within one year upon the repayment of the loan, why should he have been unwilling to surrender the assignment to the legacy ? The paper of November 11th was drawn by Baker, and contains both the assignment of the legacy and the agreement concerning the Baltimore property, showing still more clearly that the Baltimore property was a mere makeshift in the transaction.

At the time complainant made this loan, each dollar of Mercer’s reversionary interest in said bequest, according to standard mortality tables, was worth .67212 of a dollar, making the total value of his interest at that time $1,581.07. Taking into consideration the fact that the annuitant had been in feeble health for many years, the then present worth of the reversionary interest was, of course, much greater. It is apparent, therefore, that complainant, knowing the situation and condition of Mercer, was led to believe that the loan would not be repaid within the year, and that, therefore, the assignment would become at the expiration of that period in fact as well as in form absolute. It was undoubtedly this consideration that induced complainant to make the loan. The death of the annuitant within a year changed the situation, but apparently in no wise abated the desire of complainant to obtain $2,352 by the expenditure of $275.

Within one year from the date of said agreement of November 16th complainant was tendered in behalf of Mercer $275, and interest thereon at 6 per cent, amounting to $291.50, which was refused. The defendant Brown and the intervener Mercer in their answers tender themselves as ready and willing to pay said sum upon the order of the court, and we think it was error for the trial court not to direct complainant, upon receiving said sum, to cancel and surrender up said assignment of November 16th.

This view renders it unnecessary to consider the question whether equity would lend its aid to the carrying out of a transaction of the character of that involved here, even though the complainant’s construction of said agreement be accepted.

For the reasons given the decree will be reversed, with costs, and the cause remanded for further proceedings. Reversed.