Napper v. Rice , 127 W. Va. 157 ( 1944 )

I respectfully disagree with the conclusions reached in the majority opinion.

I think the deed from Napper and wife to Rice and the agreement by which Rice agreed to reconvey to Napper clearly established that the transaction constituted either a mortgage or conditional sale, and the bill of complaint is framed on those alternative propositions. I agree, however, that if there is no debt there can be no mortgage. The oral proof of a debt in this case is so meager as to be almost non-existent, but on looking to the provisions of the agreement between Napper and Rice it is plain to me that they intended to create the relation of debtor and creditor, which intention determines the character of the transaction. Gibson v. Hopkins,80 W. Va. 756, 757, 93 S.E. 826. "In case of doubt however, a court of equity will always lean in favor of a mortgage rather than a conditional sale." Davis, Committee v. Demming et al.,12 W. Va. 246, 281; Thacker v. Morris, 52 W. Va. 220, 223,43 S.E. 141.

It has been held by this Court "that where land is conveyed by debtor to creditor, to secure the repayment of a loan of money, and the borrower makes a deed absolute to the lender, but with a collateral contract or agreement for the repurchase of the property, the transaction constitutes a mortgage, and not an absolute sale." Mankin v. Dickinson, 76 W. Va. 128, 131,85 S.E. 74, and cases cited. However, it was held in the Mankin case that the circumstances there considered did not justify a holding that a mortgage existed. The majority opinion holds that the relation of debtor and creditor did not exist between Napper and Rice, but, as indicated above, I believe that the written agreement and the evidence are sufficient to establish that relation.

Waiving the question whether the transaction here constituted a mortgage or a conditional sale, the majority opinion holds that the transaction between Napper and Rice constituted a conditional sale, and that the evidence on behalf of the plaintiff is not sufficient to show compliance on Napper's part with the condition. Authorities are cited in the majority opinion for the proposition that a contract for the conveyance of land must be proved by evidence "which is clear, full and free of suspicion", otherwise specific performance will be denied. I agree with that statement, but on examination of the authorities cited, it will be found that the rule announced therein relates to proof of the terms of a parol contract for the sale and conveyance of land. In this case the agreement to reconvey to Napper is written, and its provisions and terms are neither denied nor questioned. We are here concerned with oral proof of compliance with the condition of the contract rather than its existence or terms. There is no question here of establishing a parol contract by proof, and I am of opinion that the rigorous rule announced in the majority opinion is inapplicable to the facts disclosed by this record, and that a preponderance of the evidence is sufficient to establish the fact that Napper offered to repurchase the land from Rice.

We have the undisputed testimony of one witness that Napper exercised his option. Further, the same fact was elicited by defendants' counsel on cross-examination of Napper who testified that he made an offer to pay Rice, and that Rice refused to accept.

The trial chancellor by a written opinion made a part of the record found that the evidence was not sufficient to establish tender of the sum due from Napper to Rice. Formal tender was unnecessary for the acceptance and exercise of the option by Napper. It is immaterial whether an actual tender of the amount due Rice was made by Napper. The question here is: Did Napper accept the written offer to resell? The record does not disclose that this specific question was resolved by the trial chancellor.

"Courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible * * *." Norfolk W. R. Co. v.Crowe, 110 Va. 798, 805, 67 S.E. 518; Owen v. Power Co., 78 W. Va. 596,610, 89 S.E. 262, 268; Acree v. Pipe Line Co., 122 W. Va. 242,246, 8 S.E.2d 186. The testimony introduced to show the exercise of the option by Napper is neither contrary to human experience or the laws of nature, nor can it be said to be incredible. It is true that where a chancellor makes a finding on conflicting evidence and such finding is not against the preponderance of the evidence or clearly wrong this Court will not set aside such finding. The majority opinion lays down a somewhat different rule in the language following: "The trial chancellor is not bound by direct evidence which is weak, uncertain, vague or otherwise questionable. Fisher v.Berwind-White Coal Mining Company, 64 W. Va. 304, 61 S.E. 910;Mullens v. Lilly, 123 W. Va. 182, 13 S.E.2d 634; Bradshaw v.Farnsworth, 65 W. Va. 28, 63 S.E. 755." An examination of the opinions of the Court in the cases just cited will disclose that it was there held that a finding of fact on conflicting evidence by a trial chancellor supported by the evidence would not be disturbed by this Court unless manifestly wrong, and I find no support therein for the rule above quoted.

I am of opinion that there was sufficient evidence to establish a compliance with the condition of the contract, and I therefore would reverse the decree of the Circuit Court of Raleigh County.