delivered the opinion of the Court:
Upon the face of the instruments in writing executed between the parties, complainant has a plain title to the relief asked. The defence set up in avoidance of the apparent force of the contract in question of A. P. Hall is, that although all the instruments bear the same date and appear to be parts of one transaction, yet, that the contract of A. P. Hall was executed at a time subsequent to that when the other instruments were executed, and was entirely independent of them, and was executed without any consideration whatever.
The only witnesses to the transaction which took place between Douglass and C. M. Hall, are Mr. Humphrey, and Douglass and Hall themselves.
Mr. Humphrey testifies that he was present as the attorney at law of A. P. Hall, having in his hands the bond for a deed to the S. W. i sec. 25 from C. M. Hall to Chauncey Hall, assigned to A. P. Hall, to obtain a deed for the latter; that Douglass agreed if C. M. Hall would compound the interest at eight per cent and give him a mortgage on the two quarter sections named in the mortgage, he would give a year’s time, and that he would do this for the purpose of releasing the S. W. sec. 25, so that C. M. Hall could give a deed therefor to his brother, A. P. Hall, and take up the bond; and that C. M. Hall stated he would give that bonus for the purpose of getting S.W. 25 clear, so as to give his brother a deed; that not a word was said in regard to a lien on S. W. ¿ sec. 25, or as to A. P. Hall signing any paper. That when C. M. Hall made the deed to A. P. Hall, the witness took it over to the house of Chauncey Hall, where A. P. Hall was, and handed the deed to the latter; that in the neighborhood of an hour after Mr. Douglass came over to Chauncey Hall’s with the contract in his hand, said he did not know anything about whether there was any incumbrance upon the U. E. ¿ 31, T. 9 ISL, K.. 4 E, and wanted A. P. Hall to sign the contract; that his recollection was that Mr. Douglass said all he wanted of the paper was to protect him against incumbrances, and witness said to A. P. Hall, “ If he wants it for the purpose he states, it won’t hurt you; I looked at it and read it, and A. P. Hall signed it.”
The testimony of C. M. Hall, though less direct and explicit, is, in some respects, in corroboration of that of Mr. Humphrey, as that Douglass proposed to give him time and release S. W. Í sec. 25, and take another quarter section, and consented to do so on witness’ agreement to pay him eight per cent compound interest; and that on the next morning, after the writings were executed, Douglass came to him with a representation that A. P. Hall had signed a paper giving him a lien on S. W. i sec. 25, showing him the same; that witness did not, when the parties were present, hear any such instrument spoken of; that Douglass said he did not know anything about the title to the land, whether incumbered or not, and wanted witness to sign the agreement on the back of the contract, to hold his brother harmless, and he signed it upon the understanding with Douglass that the latter was to hold the instrument until he could see if the title was good.
A. P. Hall testifies that he knew nothing of the settlement between Cyrus M. Hall and Douglass; that the first conversation he had with Douglass about S. W. i 25 was, it might have been, an hour or two hours after he got his deed; that Douglass came over to the house of Chauneey Hall, the father of witness, and said they had settled the thing all up, except he wanted witness to give him an instrument in writing that the papers were all right on H. E. J 31, 9 N., 4 E.; that he did not know whether there was any incumbrance on the land or not, and if there was not, it would not hurt witness; and that witness, after hesitation, signed the instrument, concluding that if there was no incumbrance on the land it wouldn’t hurt him.
Chauneey and Sarah Hall, the father and mother, and Morris Meeks, the brother-in-law of A. P. Hall, testify as to Douglass coming over to the house of Chauneey Hall some time after A. P. Hall had got his deed, in the same evening, and getting the latter to sign the contract, making similar statements about incumbrance as testified by the other witnesses. This comprises the substance of the testimony in opposition to the contract of A. P. Hall.
Mr. Douglass, in his testimony for complainant, is most positive that he refused to take the mortgage and release S. W. 25; that he never agreed to release, and never did release it; that A. P. Hall, at the same time the other papers were made, and before the transaction was closed, executed to him the contract in question by which his lien for the purchase money was retained on S. W. i 25; that the papers were all made and agreed to and executed as a part of the same transaction; that he never made any agreement different from what the papers express, and denies that after the deeds and mortgage were delivered he went some time subsequently to A. P. Hall and got him to sign the contract.
The deed from Douglass to C. M. Hall, though bearing a prior date, was admittedly delivered on December 23, 1870. The mortgage from C. M. Hall to Douglass, the deed from C. M. Hall to A. P. Hall, the contract from A. P. Hall to Douglass, and the agreement indorsed thereon of G. M. Hall, all bear date December 23, 1870, appearing to be made at the same time, and to be parts of one transaction. The attempt now made to destroy the effect of the contract of A. P. Hall, by the introduction seven years after the transaction, as is the case here, of the oral evidence of witnesses that the contract was not executed at the same time with the other instruments, but a space of time afterward of one or two hours, is somewhat startling as respects the security of instruments of writing as the memorial of parties’ contracts, and should not be allowed to prevail, unless the evidence be of a very satisfactory character. The evidence adduced in defeat of this contract is marked with extreme improbability. Mr. Douglass was an attorney at law, and some years previous, as such, had foreclosed a mortgage in behalf of creditors against C. M. Hall and Chauncey Hall, upon N. W. ¿ sec. 36, and S. W. i sec. 25, T. 9 H., It. 3 E., arid taken the title to himself, the lands having been bid off for his clients in his name. He then sold the lands to G. M. Hall by contract, the notes for the purchase price being payable to Douglass, and running at six per cent interest. In 1870 a gopd deal of this paper had been running past due, and Mr. Douglass had determined to close the matter up, and pressed Hall upon the subject, which resulted in the execution of the several instruments on December 23, 1870.
The difference between six and eight per cent interest on the unpaid purchase money amounted, Mr. Douglass says, to about $500, and that this was paid by Hall, as a consideration for the extension of the time of payment one year; when the opposing testimony would make it appear that it was the consideration for the release of the S. W. £ 25 from liability for the purchase money, and taking the ÜST. E. £ 31, T. 9 ISL, E. 4 E. in its stead.
Mr. Douglass says he knew nothing about the title or value of IST. E. £ 31, and had never seen it, but that he knew the value of the land for which the purchase money was due.
A. P. Hall testifies that S. W. £ 25 was then worth $30 per acre, and N. E. £ 31 about $15 per acre. It is very unlikely that an attorney pressing the collection of long delayed money would make such a venture for a client, as testified to for the defence, to release, for the consideration of $500, the security for a large debt, of a quarter section of land, the value and title of which he well knew, and accept in its stead the insufficient security of another quarter section, as to the title and value of which he was entirely ignorant. It would not be a lawyer-like act.
Defendants’ witnesses represent that some time after the other instruments had been executed, and the transaction entirely closed, Mr. Douglass came over to the house where A. P. Hall was, and then for the first time wished him to sign the contract as a security against there being any incumbrances on H. E. £ 31.
How happened it that Mr. Douglass should not have expressed this wish before or at the time he made his deed to O. M. Hall of N. W. £ 36 and S. W. £ 25, and when he had-the power in his own hands to enforce compliance with it, and not delay until afterward, when it would be a mere matter of grace with Hall to give the contract or not, and then, when given, not be binding, as is insisted, for want of consideration? It is difficult to believe that an attorney would thus act, as testified.
Mr. Humphrey was present as an attorney at law, in the interest of A. P. Hall, to get a deed for him, under his bond therefor from C. M. Hall to S. W. £ 25. It is stated that he looked at the contract and read it, and on Mr. Douglass saying all he wanted of the contract was to protect him against incumbrances on H. E. £ 31, that Mr. Humphrey said to A. P. Hall, if Douglass wanted the contract for the purpose he mentioned it would not hurt Hall, and then the latter signed it. The contract says nothing about incumbrances; it is absolute, that in case the purchase money for 1ST. W. £ 36, and S. W. £ 25, should not be made under the mortgage, then Douglass should have a lien therefor upon the land conveyed to A. P. Hall, the S. W. £ 25. As an attorney Mr. Humphrey must have known that the written contract would speak for itself, and that the statement of Douglass as to the purpose for which he wanted it would avail nothing as against the contract itself. How could he then, acting in the position he was, with respect to Hall, assent to his client gratuitously signing such a contract? Would he have done so without having it inserted in the contract that it was only as security against incumbrances on H. E. £ 31 ? The testimony is an impeachment of the capacity and faithfulness of the attorney.
The principal witnesses for the defendant testify that Douglass stated all he wanted of the contract was to protect him against incumbrances on N. E. £ 31, and that he would not put it upon record; and they testify that the writing appearing upon the margin of the contract was not there at the time A. P. Hall signed the contract, nor at the time C. M. Hall signed his agreement on the back of the contract. The evidence is that the writings were all executed in the evening of December 23, at a place eighteen miles distant from the county seat and the recorder’s office; that Mr. Douglass remained at that place that night; that he left the next morning, taking Avith him to file for record all the instruments; and that at 10J o’clock A. M. on December 24,1870, all the papers were filed for record, this contract from A. P. Hall among them; and that at the time they were filed, the writing then appeared on the margin of the contract as it does now. If there was a promise not to record the contract, we can hardly think it would have been so quickly violated. There Avas scarcely sufficient opportunity, after the execution of the contract and signing the agreement on the back, and before the filing of it for record, to have Avritten the Avords which appear on the margin; and there is the improbability that an attorney would have thus, unauthorizedly, meddled Avith a written instrument. This evidence imputes to an attorney dishonesty and criminality of conduct, with so little motive, that it is not readily to be believed in respect to one of good standing in the legal profession.
There may have been some interval of time between the execution of the other papers and that of the contract of A. P. Hall, and the latter contract may have been executed in a different place and yet have been part of the same transaction; and it may be but the idea or belief of witnesses that it Avas not, from the above named circumstances.
Mr. Douglass may very likely have made representations, as the contract expresses, that resort would not be had to the land of A. P. Hall, except in case the money could not be made out of the lands included in the mortgage, and this, at so great a distance of time, the witnesses, in their recollection, may confound as being a statement of Douglass that he Avanted the contract from Hall only as security against incumbrances on one of the tracts included in the morte-aare, the N. E. | 31.
The evidence brought against the validity of the contract in question as making it an independent transaction, disconnected with that of the execution of the other writings, and so as without consideration, is unnatural, inconsistent and improbable, and comes quite short of being of a convincing kind. Upon the whole evidence we are entirely satisfied that these papers should be taken to be, as they appear upon their face—to have been executed at the same time, and as parts of the same transaction; that the vendor’s lien for the purchase money, existing at the time Douglas made the conveyance to C. M. Hall of the 2?. W. i 36 and S. W. i 25, T. 9 2í., R. 3 E., was qualifiedly reserved as to the S. W. 25, T. 9 21., R. 3 E., and that the contract signed by A. P. Hall, to whom C. M. Hall at that same time conveyed said S. W. í 25, expresses the fact of such reservation.
The decree will be reversed, and the cause, remanded for further proceedings in conformity with this opinion.
Decree reversed.