People ex rel. Ford v. Irwin

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

This case was before us at the October term, 1859, and a new trial was ordered for reasons stated in the opinion then delivered. The same questions are again presented, but the facts are somewhat different, and a further and more critical examination of these questions is necessary. The principal point in the case relates to the construction to be given to a deed from one Arnold to the relator, the question being whether this deed is to be treated as an absolute conveyance or merely as a mortgage. The deed is absolute on its face, and the difficulty in regard to its construction grows out of a cotemporaneous contract providing for a reconveyance of the property. This contract, which is not under seal, and has never been acknowledged or recorded, provides expressly that it shall only be treated as a contract to convey, and not as an acknowledgment that the deed from Arnold was intended as a mortgage. The deed purports to have been given in consideration of one hundred dollars, and when the case was here before, there was no evidence outside of the papers themselves of what the consideration really was. This evidence has since been supplied, and it now appears that the [119]actual consideration was a preexisting indebtedness equal in amount to the sum required to be paid upon a reconveyance of the property. There is no doubt that this additional evidence, unless controlled by the clause referred to in the contract, is sufficient to impress upon the deed the character of a mortgage, and it is therefore necessary to determine the effect of that clause.

In our former opinion we conceded the proposition, that the parties could not by a mere declaration of their intention, enforce an arbitrary construction of the contract in opposition to the plain import and meaning of its provisions; but we did not intend to admit that the clause in question was either superfluous or nugatory. It is a clear and unequivocal expression of what was intended by the transaction, and if there is any reasonable interpretation which will give effect to that intention, we do not see upon what principle it can be rejected. The intention with which the parties acted is, of course, the controlling consideration, and this can only be ascertained by dealing with the contract as a whole, and giving to each and all of its provisions a just and reasonable construction. The counsel for the defendant is unwilling to concede to this clause any effect whatever, and. claims that it can only be regarded as an attempt to enforce a construction at variance with what the law presumes to have been the objects and purposes of the transaction. In other words, he claims that the parties have undertaken to supersede the law, and determine for themselves a question which belongs exclusively to the Courts. The answer is, that the parties were competent to deal with the subject as they pleased, and that giving to the contract precisely the effect contemplated, there is nothing unlawful in the transaction. The whole matter, in our view, resolves itself into a mere question of intention, and in determining this question the language in which the parties have undertaken to express their meaning, is certainly entitled to some consideration.