dissenting:
Concerning many of the important facts of this case, there is no disagreement. In 1865, one L. Douglass sold to Cyrus M. Hall a half section of land, and gave him a bond for a deed on j payment of the purchase money, which was evidenced by promissory notes bearing interest at the rate of six per cent per annum. One quarter section of the land was afterwards sold by C. M. Hall to his father, Chauncey Hall, from whom he received payment in full; but as the purchase money to become due to Douglass had not been paid, and as Cyrus M. Hall had received no deed for the land, he made his father a bond for a deed when he himself should obtain a title to the land. That tract was sold by Chauncey Hall to Alpheus P. Hall, the bond for a deed assigned to him, and the grantee placed in possession.
Afterwards, on the 23d day of December, 1870, Douglass conveyed the whole half section to Cyrus M. Hall, and on the same day Cyrus M. Hall conveyed the quarter section he had previously sold to his father, to his brother, Alpheus P. Hall. It was agreed, in computing the amount that remained unpaid on the whole half section from Cyrus M. Hall, the interest should be calculated at eight per cent, compounded annually, instead of at six per cent per annum simple interest, as specified in the notes given in the first instance to secure the purchase money. As I understand the evidence, this mode of reckoning the interest made a difference in the sum due of about $500, which was added to the sum actually due, making a total sum remaining unpaid at that date of $4407.97. Eor that sum Cyrus M. Hall executed to Douglass his promissory note, payable in one year, with interest at the rate of ten per cent per-annum, but, for some reason, dated the note back to Hovember 1, 1870, and secured the same by a mortgage to Douglass on one of the quarter sections bought of him, and on another quarter section situated a mile east, but in another township. The quarter section that had been sold and conveyed to Alpheus P. Hall was not embraced in the mortgage. On the same day Alpheus P. Hall executed and delivered to Douglass a paper, in which it was recited that Cyrus M. Hall had purchased of Douglass the half section of land that day conveyed to him, and that he had conveyed one quarter section to Alpheus P. Hall ; that a large sum still remain unpaid on the purchase money of the -whole half section, and that in case the whole purchase money, with the interest, should not be made under the mortgage, Douglass should have a lien therefor on the quarter section sold to defendant Alpheus P. Hall. It is concerning this agreement the contention has arisen. Douglass was but a trustee for complainant, and afterwards assigned the note and mortgage he had taken -from Cyrus M. Hall, together with the agreement of Alpheus P. Hall, to complainant, without recourse upon him. After the mortgage was foreclosed, and the premises sold, there remained unpaid on the note secured a sum less than $800. That sum of course included whatever extra interest was added to the sum due when the mortgage was taken, together with subsequently accruing interest. This bill was then filed to enforce a lien under the agreement of December 23, 1870, against the land sold to Alpheus P. Hall, for the deficit that remained after the sale of the lands included within the mortgage.
Complainant insists that agreement was made at the same time and in consideration of the making of the deeds of that date, and as a part of the same transaction, to preserve a vendor’s lien on the tract of land not embraced in the mortgage, that was sold to defendant Hall. On the other hand, defendant maintains it was not executed or delivered until after the deeds had been executed and delivered; that it was without consideration, and was made under the belief Douglass only wanted it by way of assurance that the title to the other tract of land included in the mortgage was free from incumbrance, and that the title was good in the mortgagor. This latter theory of the case seems to me to be better sustained by the evidence, is more consistent with the undisputed facts, and has for its support considerations of right and justice.
There is no controversy that an amount of near $500 was added to the sum actually due on the purchase money at the time the deeds were made; and. unless it was given, as defendant alleges it was, as a consideration that Douglass would make a deed to Cyrus M. Hall for the entire half section, and would accept a mortgage to secure the unpaid balance on one quarter section, with other lands, that he might convey the quarter section sold to defendant, free from incumbrance, then the sum added as extra interest was a mere gratuity either to Douglass or his client—a proposition, it seems to me, too unreasonable to be entertained. It will not do to say that that large sum was added to the existing indebtedness in consideration of forbearance to enforce payment. For that favor the debtor was to pay interest at the rate of ten per cent per annum, instead of six per cent, as his original undertaking was. Had the $500 been taken in addition to the ten per cent interest agreed upon, as foi' forbearance to enforce payment, the contract would plainly have been obnoxious to the statute forbidding usury—a result not within the contemplation of the parties.
Although the evidence is conflicting, a close analysis shows the weight to be with the finding of the court, that the taking of the agreement was an after-consideration, and was not done as a part of the transaction to preserve the lien the vendor had upon the land. Had that been the intention, the simplest as well as the usual way would have been to include this tract in the mortgage with others. On account of unfriendly relations that existed between defendant and Cyrus M. Hall, he was not present when the deeds were made, but was represented by counsel. Defendant is positive the agreement was not presented to him for his signature until after his deed had been delivered to him. His recollection is, the agreement was signed at his father’s house, after he had given the deed from his brother into the care of his mother for safe keeping; and in that statement he is corroborated by a number of witnesses. The finding of the court on this branch of the case can not be reversed unless this court rejects the testimony of a number of unimpeached witnesses, and relies solely upon the testimony of Douglass, which I do not understand it would be justified in doing; nor is there any reason why that should be done. So far as can be known to this court, the witnesses are of equal respectability, and entitled to equal credit. The circuit court believed the greater number of witnesses, and decreed accordingly, and I am at a loss to know upon what principle this court can say it erred in its judgment.
At the time the mortgage was taken, the lands included in it, without the quarter section sold to defendant, were deemed by all concerned as ample security for the unpaid balance of the purchase money, if the title to the additional tract was in the mortgagor, and was free from incumbrance. The arrangement was closed up on the premises, distant from the county records, and, as Douglass was not familiar with the condition of the title to that tract of land, it was a reasonable proposition he should want assurances from defendant, as well as Cyrus M. Hall, that the title was perfect in the mortgagor; and it was with that view, and for no other purpose, in my opinion, that defendant signed the agreement after he was advised so to do by Humphrey, who was present as his legal advisor. All the witnesses present concur that Douglass declared, byway of inducing defendant to sign the agreement, that was the only purpose for which he wanted it; otherwise, he was satisfied with the security afforded by the mortgage. What reason could exist why the mortgagor should add $500 to his indebtedness, unless it was to obtain a release of the vendor’s lien on the quarter section sold to defendant? The deficit that remained after the sale of the mortgaged premises does not greatly exceed the $500 added, with the accumulated interest, and, under the circumstances proven, it would be inequitable to permit complainant to enforce a lien for it against the property of defendant.
There is no war-rant in the evidence for the proposition asserted that defendant executed the agreement of December 23, 1870, to keep alive the vendor’s lien. That had been Avaived by the vendor agreeing to receive an additional sum and taking security for it with what remained unpaid of the purchase money on other lauds. The only reasonable explanation of the execution of the agreement is that given by defendant, that it was done by way of assurance to Douglass that the title to the additional lands included in the mortgage was perfect. Defendant knew the title was good, and could feel free to give such assurance under the belief he was incurring no liability. It is consistent Avith all the other facts and acts of the parties, about which there can be no misunderstanding, and is the only view that does justice betAveen the parties.
It is apparent complainant has already realized from the mortgage sale nearly or quite all that Avas due him for the purchase money of the entire half section, according to his original contract, and that which he is now seeking to collect consists, as we have seen, chiefly of that which was given to induce him to release the lien on defendant’s land. If his mortgage security was not sufficient, he must look to Cyrus M. Hall for reimbursement of what remains unpaid, and not to the property of defendant.
The decree, in my opinion, is eminently just, and ought to be affirmed.