The opinion of the court was delivered by
Mr. Chiee Justice McIver.
The facts of this case are so fully and so clearly stated in the Circuit decree of his honor, Judge Izlar, and his conclusions, both of law and fact, are so satisfactorily vindicated by the reasoning which he employs and the authorities which he cites, that we may well adopt his decree as the opinion of this court, in conformity to a practice quite common in the former Court of Equity in its palmiest days. In deference, however, to the zeal, earnestness, and ability with which this appeal has been pressed, without undertaking to make any statement of the facts, or going into a discussion of the legal principles, which would involve a mere' repetition of what has been so well said in the Circuit decree, which will be incorporated in the report of this case, we propose to consider the points in which it has been assailed by the grounds of appeal, which should likewise be incorporated in the report of the case. These grounds have been condensed, in appellant’s argument here, into three points: 1st. That his honor erred in holding that the equity of the plaintiff could only be parted with by a conveyance or a foreclosure and sale, whereas, he should have held that such equity could have been, and was, waived by the giving of the leases to Rodgers and the lease to the defendant. 2d. That there was error in holding that defendant had notice of the equity of plaintiff by reason of his possession, when that possession was explained by the leases executed by plaintiff to Rodgers. 3d. That there was error in holding that the lease from defendant to the plaintiff was unfairly obtained, when the defendant was cut off by his honor from introducing further testimony as to this point, thereby indicating that the defendant had sufficiently established the contrary.
1 It will be observed that all of these points turn upon the effect which should have been given to the leases. In view of the well settled principle, that even where the mortgagor has conveyed to the mortgagee the equity of redemp[510] tion, the transaction is to be carefully scrutinized, inasmuch as the law looks with jealousy upon such dealings, in order to see whether the creditor has taken advantage of the influence which his relation to the debtor gives him, it seems to us clear that the Circuit Judge committed no error iu the view which he took of these so-called leases. See Webb v. Rorke, 2 Sch. & Lef., 661; Holridge v. Gillespie, 2 Johns. Ch., 30; Russell v. Southard, 12 How., 139; Villa v. Rodriguez, 12 Wall., 323. As to the leases to Bodgers, it is very obvious from the testimony that they were not. designed to be what they purported to be; for, although extending over a period of several years, t.he rent purported to be reserved was never paid, or even demanded, and was not charged in the accounts of Pelzer, Bodgers & Co. against, the plaintiff, and during all that period the taxes on the land were paid by the plaintiff, generally through Pelzer, Bodgers & Co., and charged in their accounts against the plaiutiff, although there was no provision in the leases obligating the plaintiff to pay such taxes. And when to this is added the fact that the plaintiff was making expensive and permanent improvements upon the premises, it is impossible to resist the conclusion that the Circuit Judge took a proper view of the matter.
2 As to the alleged lease to the defendant, that was taken before the defendant had acquired the legal title; and when to this is added that the Circuit Judge found as a fact that such lease was unfairly obtained, it is quite obvious that there was no error here. It is true, that this finding of fact has been vigorously assailed in the argument; but as the testimony upon this point is conflicting, we must, under the well-settled rule, sustain the finding of the Circuit Judge; for, as has been said in several eases, where the testimony is conflicting, this court will rarely, if ever, disturb the finding below. Here there was a direct conflict in the testimony, and we must say that there is much in the surrounding circumstances to sustain the conclusion reached by the Circuit Judge.
[511] 3 [510] But. it is urged that when the defendant offered to introduce further testimony upon this point, he was stopped, whereby the defendant was misled into the belief that the Circuit [511] Judge was satisfied that the view contended for by defendant had been sufficiently established. We do not find any evidence of this in the stenographic notes of the trial, but we do find in the general statement made in the commencement of the “Case,” that after the defendant had introduced several witnesses, who testified in substance that the plaintiff, during the year 1890, had acknowledged to them, or stated in their hearing, that the defendant had bought his land, and that he had rented it from him for $250, and that Guess had promised to give him the refusal of it as long as he wanted it, &c., this statement is made: “The defendant had other witnesses in attendance to prove the same or similar acknowledgments or confessions upon the part of plaintiff, and upon calling one of them, the presiding judge informed defendant’s attorney that he need not introduce further proof on that point.” Accepting this statement as a correct version of what occurred, we do not see how it can have the effect claimed for it by the appellant. There was no doubt of the fact that the plaintiff had given to the defendant a paper purporting to be an obligation to pay $250 for the rent of the premises for the year 1Í 90, for that was conclusively proved by the terms of the paper itself introduced, and was not denied by the plaintiff; and, therefore, the additional witnesses proposed to be examined by defendant could not have added anything to the conclusiveness of the proof upon that point. But the important matter was, what occurred when that paper was signed, and as to this we do not understand that it was proposed to examine the additional witnesses.
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The opinion of the court was delivered by
Mr. Chiee Justice McIver.
The facts of this case are so fully and so clearly stated in the Circuit decree of his honor, Judge Izlar, and his conclusions, both of law and fact, are so satisfactorily vindicated by the reasoning which he employs and the authorities which he cites, that we may well adopt his decree as the opinion of this court, in conformity to a practice quite common in the former Court of Equity in its palmiest days. In deference, however, to the zeal, earnestness, and ability with which this appeal has been pressed, without undertaking to make any statement of the facts, or going into a discussion of the legal principles, which would involve a mere' repetition of what has been so well said in the Circuit decree, which will be incorporated in the report of this case, we propose to consider the points in which it has been assailed by the grounds of appeal, which should likewise be incorporated in the report of the case. These grounds have been condensed, in appellant’s argument here, into three points: 1st. That his honor erred in holding that the equity of the plaintiff could only be parted with by a conveyance or a foreclosure and sale, whereas, he should have held that such equity could have been, and was, waived by the giving of the leases to Rodgers and the lease to the defendant. 2d. That there was error in holding that defendant had notice of the equity of plaintiff by reason of his possession, when that possession was explained by the leases executed by plaintiff to Rodgers. 3d. That there was error in holding that the lease from defendant to the plaintiff was unfairly obtained, when the defendant was cut off by his honor from introducing further testimony as to this point, thereby indicating that the defendant had sufficiently established the contrary.
1 It will be observed that all of these points turn upon the effect which should have been given to the leases. In view of the well settled principle, that even where the mortgagor has conveyed to the mortgagee the equity of redemp[510] tion, the transaction is to be carefully scrutinized, inasmuch as the law looks with jealousy upon such dealings, in order to see whether the creditor has taken advantage of the influence which his relation to the debtor gives him, it seems to us clear that the Circuit Judge committed no error iu the view which he took of these so-called leases. See Webb v. Rorke, 2 Sch. & Lef., 661; Holridge v. Gillespie, 2 Johns. Ch., 30; Russell v. Southard, 12 How., 139; Villa v. Rodriguez, 12 Wall., 323. As to the leases to Bodgers, it is very obvious from the testimony that they were not. designed to be what they purported to be; for, although extending over a period of several years, t.he rent purported to be reserved was never paid, or even demanded, and was not charged in the accounts of Pelzer, Bodgers & Co. against, the plaintiff, and during all that period the taxes on the land were paid by the plaintiff, generally through Pelzer, Bodgers & Co., and charged in their accounts against the plaiutiff, although there was no provision in the leases obligating the plaintiff to pay such taxes. And when to this is added the fact that the plaintiff was making expensive and permanent improvements upon the premises, it is impossible to resist the conclusion that the Circuit Judge took a proper view of the matter.
2 As to the alleged lease to the defendant, that was taken before the defendant had acquired the legal title; and when to this is added that the Circuit Judge found as a fact that such lease was unfairly obtained, it is quite obvious that there was no error here. It is true, that this finding of fact has been vigorously assailed in the argument; but as the testimony upon this point is conflicting, we must, under the well-settled rule, sustain the finding of the Circuit Judge; for, as has been said in several eases, where the testimony is conflicting, this court will rarely, if ever, disturb the finding below. Here there was a direct conflict in the testimony, and we must say that there is much in the surrounding circumstances to sustain the conclusion reached by the Circuit Judge.
[511] 3 [510] But. it is urged that when the defendant offered to introduce further testimony upon this point, he was stopped, whereby the defendant was misled into the belief that the Circuit [511] Judge was satisfied that the view contended for by defendant had been sufficiently established. We do not find any evidence of this in the stenographic notes of the trial, but we do find in the general statement made in the commencement of the “Case,” that after the defendant had introduced several witnesses, who testified in substance that the plaintiff, during the year 1890, had acknowledged to them, or stated in their hearing, that the defendant had bought his land, and that he had rented it from him for $250, and that Guess had promised to give him the refusal of it as long as he wanted it, &c., this statement is made: “The defendant had other witnesses in attendance to prove the same or similar acknowledgments or confessions upon the part of plaintiff, and upon calling one of them, the presiding judge informed defendant’s attorney that he need not introduce further proof on that point.” Accepting this statement as a correct version of what occurred, we do not see how it can have the effect claimed for it by the appellant. There was no doubt of the fact that the plaintiff had given to the defendant a paper purporting to be an obligation to pay $250 for the rent of the premises for the year 1Í 90, for that was conclusively proved by the terms of the paper itself introduced, and was not denied by the plaintiff; and, therefore, the additional witnesses proposed to be examined by defendant could not have added anything to the conclusiveness of the proof upon that point. But the important matter was, what occurred when that paper was signed, and as to this we do not understand that it was proposed to examine the additional witnesses.
4 Finally, it is urged that the Circuit Judge erred in ascertaining the amount due by the plaintiff. Taking the testimony introduced at the trial, upon which alone must the case be considered, we do not see how it wordd have been possible for the judge to have reached any other conclusion than that which he did reach. If the defendant had, or ought to have had, other testimony showing the amount to be larger, it was incumbent upon him to produce it, for he was distinctly advised by the prayer of the complaint, that he would “be required to establish the amount due on his debt, assigned as aforesaid by and from F. S. Rodgers.” He knew, [512] or ought to have known, that the amount of the debt due by plaintiff could have been ascertained from, and proved by, the books of Pelzer, Rodgers & Go., and if he failed to procure and introduce such evidence, which was manifestly within his reach, at the trial, he must take the consequences of his own neglect, or, perhaps, his over-confidence in his other defence. Even if the plaintiff, under the mistaken belief that the debt amounted to twenty-five hundred dollars, authorized his attorney to offer the defendant that amount, which offer was refused, that could not operate as a conclusive admission that the debt amounted to that sum. One of the objects of this action, plainly expressed in the complaint, was to require the defendant to establish the amount of his debt, and when the defendant, in his answer, expressly denied that plaintiff owed him anything, and really based his defense upon that ground, he cannot, with a very good grace, now claim that he was misled into the belief that plaintiff admitted his indebtedness to be as much as twenty-five hundred dollars.
5 It only remains to consider the petition filed by the defendant since this appeal was perfected. This petition is addressed to this court, and cannot be regarded in any other light than as either an attempt to renew, in a different form, the application made to this court at a previous term 1 to suspend this appeal with a view to enable the defendant to move for a new trial in the court below, upon the ground of after-discovered evidence, or as a petition for a rehearing. Regarded in either light, we do not see how it can avail the defendant. If considered as an attempt to renew the effort made at a former term, then the doctrine of res adjudícala, is conclusive. If as a petition for rehearing in the court below, itshould properly have been made to that court before it lost its jurisdiction by this appeal. But if the purpose was to ask this court to cousider facts not presented to the Circuit Court, as would seem to be the case from the circumstance that we find appended to the petition copies of plaintiff’s accouut current with Pelzer, Rodgers & Co., which appellant claims would show [513] that there was error as to the amount found due, then it is clear beyond dispute that we cannot consider such facts. For, as is said by Taney, C. J., in Russell v. Southard, 12 How., at page 159 : “According to the practice of the Court of Chancery from its earliest history to the present time, no paper not before the court below can be read on the hearing of an appeal.” This court has, in numerous cases, recognized and affirmed this doctrine.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.