Pidcock v. Swift. The contracts, resulting in the execution of the four deeds. just described, were all negotiated by James alone, neither the father nor John ever having had any direct communication with Mr. Swift on the subject. The deeds made by the father and John were executed solely upon representations made by James. John swears that James visited Mr. Swift, at the request of his father and himself, to solicit aid, and that James, after having had several interviews with Mr. Swift, finally reported that Mr. Swift had agreed to advance the three sums, he subsequently paid, and take title and carry the lands for them, and that Mr. Swift had also said that he did not want to make a mill out of the property. John further says, that he and his father executed the deeds made by them, reposing full faith in the truth of James' report. The father died in February, 1886, more than two years before the commencement of this suit, so that his testimony on this point is lost. But James denies, with great positiveness, that he made the statements attributed to him by John, but says, on the contrary, that he told his father and John, distinctly, that he had agreed to sell and Mr. Swift to buy, absolutely and unconditionally; and he and Mr. Swift both swear that that was, in fact, the real character of their contracts, and that they made no other, either expressly or tacitly, and that no such arrangement as that described by John was ever made or even suggested. These contradictory statements exhibit the test question of the case, namely, whether the deeds were executed in consummation of an unconditional sale or merely to secure advances. Evidence inherent in the transaction and growing out of the conduct of the parties has fully persuaded me that, no matter what gloss may have been attempted to be put on the transaction, the latter was, as between James and Mr. Swift, the well-understood purpose of the deeds. The case, in its most essential features, is, in my judgment, a fair duplicate of Demarest v. Terhune, 3 C. E. Gr. 532, and should therefore be decided by the rule of judgment established by that case. The lands were conveyed for less than their fair market value. All the witnesses agree in this, those called by the defence estimating their market value, at the date of the deeds, at sums Pidcock v. Swift. ranging from $3,200 to $11,000 in excess of the sums advanced, while the estimate of one of those called by the complainant shows the excess to have been $71,500, and that of another that it was $61,000. The witness who made the estimate last mentioned was employed, soon after the execution of the deeds, to make sale of the lands. At that time he had been a real estate broker for over fifteen years, and had, for all that time, dealt almost exclusively in these lands and others lying near them. After his employment he made several sales, and was still making sales when this suit was brought, and continued to do so afterwards. His connection with the property, as well as with its ostensible owner, and his thorough knowledge of the lands, would seem to entitle his estimate, if nothing appears to impugn his motives or his judgment, to very careful consideration. His motives have not been impugned, and nothing has been shown which casts the least discredit on his judgment, except that his estimate is much higher than the estimates of other witnesses of experience and character. There was no reason why Mr. Swift should make an unconditional purchase of these lands, at least none such as ordinarily controls the action of a man engaged in a large, widely-extended and growing business. He was not a creditor of James E. Bathgate & Sons, and therefore in no danger of losing anything by their failure. The lands lay in the suburbs of Newark; a large part of them was unimproved; they were mainly valuable as building sites; some of them were low and wet; these were not likely to become salable for building purposes until they could be drained by leading the water in them to a sewer; no such sewer existed; an attempt had been made to construct a public sewer in the vicinity of these lands, but natural and legal difficulties had been encountered, making it uncertain whether the attempt would not have to be abandoned; Mr. Swift did not reside in Newark and owned no real estate there; the only business interest he had there was that which he held in the firm doing business under the name of the Newark Beef Company; he resided in Lowell, Massachusetts; he was not a real estate dealer or speculator, but was extensively engaged in slaughtering Pidcock v. Swift. food animals and selling their meat; he was interested in forty or fifty houses, located in different cities of the United States, where the meats of animals slaughtered and dressed in Chicago were sold; his special branch of the general business was to manage and oversee the business conducted at these different houses. Now, it appears to me, to a man thus situated, whose burdens, arising out of his ordinary business, were already about as heavy as he could bear, that the bare proposition that he should buy property of the kind indicated, at a distant point from his home, and thus increase his care and add to his perplexities, would have appeared so disagreeable and repulsive that he would have rejected it at once and peremptorily, as a thing not to be thought of. It is easy to see how a man in Mr. Swift's situation might have been willing to advance money on the security of such lands to help a friend, but it is not easy to believe that he would have agreed to purchase them unconditionally for anything like their fair market value. The manner in which the lands were used and occupied and dealt with subsequent to the execution of the deeds, furnishes much stronger evidence that the deeds were executed as mortgages than as absolute conveyances. Shortly after their execution, the lawn-tennis property was leased in the name of Mr. Swift, and the Newark Beef Company used a part of the sheepskin property and also a part of the slaughter-house property for the purposes of its business. John and James were both then in the employ of the Newark Beef Company. The Bathgates retained possession of the residue of the lands and used them very much as they did before the deeds were executed up until John and James quarreled in the spring of 1887. They had the buildings insured and paid the premiums. James remained in possession of his homestead without the payment of rent or any definite arrangement upon that subject, until February, 1887, when it was reconveyed to him on the payment of $1,000 His deed has never been recorded. The consideration paid for the reconveyance was nearly $3,500 less than the property had cost Mr. Swift, not computing interest on his outJay. It will be remembered that he paid $3,000 for the prop Pidcock v. Swift. erty, in April, 1885, subject to a mortgage for $12,000 and the taxes which had been assessed against it for five years. In February and March, 1886, he paid in satisfaction of these taxes and those subsequently assessed, $1,475, making his total outlay, without interest, $4,475. The reason assigned for not making an agreement when the title was transferred, respecting the amount of the rent which James should pay, is that James, shortly prior to the time he agreed to sell, had made a contract for the painting of the house, and it was therefore arranged that he should have the painting done and the premises put in good order, and that the amount he thus expended should be offset against the rent, which was to be agreed upon at some future time, But no such agreement was ever made. So far as appears, the matter was never subsequently the subject of speech or thought by either of the parties. Now, if such an understanding or arrangement actually existed, it appears to me to be so strange, as to border on the miraculous, that neither happened to mention it or even to think of it when the reconveyance was made. But this is not the only marvelous feature of this transaction. If it was not understood, when this property was conveyed to Mr. Swift, that he should subsequently reconvey it, the reconveyance would seem to have been the offspring of a vagrant impulse rather than the result of a contract or understanding. The events which preceded the reconveyance, as they appear in the evidence, were these: A short time before the reconveyance was made James told Mr. Swift that he desired, in the near future, to repurchase his homestead; that he expected soon to receive $1,000, and that he would like to repurchase it for that sum. To this Mr. Swift replied, that he neither wanted to make nor lose on the property. James says, on this occasion, he saw Mr. Swift for a short time only, and that nothing definite was agreed upon, but as they separated, Mr. Swift said that he (James) could see him again or write to him, or he could see his attorney and have his attorney to write, and that the matter was left rather in that way. James did not see Mr. Swift again, nor did he write to him, nor did he have Mr. Swift's Pidcock v. Swift. attorney write, but a short time afterwards he took $1,000 to Mr. Swift's attorney and directed him to draw a deed for the property and then send the deed and money to Mr. Swift. The attorney did so; Mr. Swift received the deed and money; he accepted the money and executed the deed and returned the deed to his attorney, with direction to deliver it to James, and it was delivered accordingly. It thus appears, not only that the reconveyance was the product of an impulse, rather than a bargain, if it be true, as James and Mr. Swift both say, that there was no understanding contemporaneous with the original transfer of title that a reconveyance should be made, but it also appears that, although Mr. Swift did not want to lose anything by a reconveyance, the fact is that he did reconvey the property for less than one-fourth of the amount which he had paid for it. And he did this, as he says, under a mistake-that he supposed he was reconveying for what he "had originally paid and any amounts that were due for interest or taxes." But why did he suppose so? How did such a fancy get into his mind? He had made no purchase for $1,000. As he states the bargains, he had made one purchase for $7,000, another for a like sum, and a third, of James' homestead, for $3,000, and he had, in addition, purchased James' interest in the Newark Beef Company for $3,000. There was nothing, therefore, in his actual transactions which made it possible for him to have confounded one purchase with another, and thus led him to suppose that he had paid $1,000 for this property, when the fact was that that was the price which he had paid for another. In this condition of affairs, by what confusion of recollection or other mental operation was it possible for Mr. Swift to suppose that he had only paid $1,000 for James' property? Moreover, had he forgotten that within less than a year he had paid for taxes on this very property nearly $1,500? And did he not remember that the person to whom he was reconveying had occupied the property as his tenant-for that is his claim-for nearly two years without the payment of a single penny for rent? The deed by which the reconveyance was made was sent to Mr. Swift for execution, at his home in Massachusetts, where |