Simmer man Mrs. Simmerman to do what she was too weak to resist 1877. Septem'r or unable to refuse. There is no doubt that Mrs. Sim- Term. merman often permitted her affections to control her judgment in the bestowment of gifts upon others, and that she was for many years before and after the war surrounded by a crowd of worthless and improvident people, who profited greatly by her kindness and ill-judged liberality. V. Songer & But the appellees were not the only persons in her employ. There were others living upon her land, both white and black; all, no doubt, partaking of her bounty more or less. One of the appellants' witnesses states "that most every lady in the neighborhood went there to see her." These people, of course, partook of her hospitality and helped to consume her substance. The appellants knew all this. They lived very close to Mrs. Simmerman, and yet they very rarely went to see her. They left her to the tender mercies of those around her. Why did they not interfere to relieve her from the unjust and improper influences to which she was exposed? If, as is now alleged, she was non compos mentis, why is it that application was not made for the appointment of a committee? We know that such a committee was appointed within a few months of her death; why was it so long delayed? Every consideration of propriety and self-interest, to say nothing of duty, would have suggested some action of the kind years before it was taken, if the appellants' present pretension be correct. The conclusion is irresistible, that they fully recognized the fact that Mrs. Simmerman was legally compos mentis, with sufficient understanding to manage her affairs; and her disposition of her property, however improvident or wasteful, could not be successfully impeached. Under circumstances of so long delay on the part of those who ought to have been vigilant, it would require VOL. XXIX-4 als. Simmer man V. 1877. a very strong case of incapacity or undue influence to Septem'r Term. justify the interposition of the court. No such case has been proved. If it was proved, the evidence, I think, fails to establish any such appropriation or use of Mrs. Simmerman's property by the appellees as could properly be the subject of an account in this case. It is, however, unnecessary to dwell upon this point, as upon the former ground the appellants are not entitled to any set-off against the legacies. Songer & als. For the reasons stated, I am of the opinion the decree of the circuit court should be affirmed. DECREE AFFIRMED. Staunton. SNAVELY V. PICKLE & als. September 13. Absent, Anderson, J. I. In February, 1841, S conveyed to a trustee a tract of land, in 1877. trust to secure a debt of $1,422 he owed to D, with power of Septem'r Term. sale after four years. In October, 1842, S was taken on two ca. sas., took the insolvent debtor's oath, and conveyed to the sheriff all his right, title and interest in this land. In January, 1843, the sheriff sold the land out and out, when D bought it for $1,500; less than his debt. In December, 1843, S and his wife, the sheriff, and the trustee united in a conveyance of the land to D, and in May, 1845, D and wife conveyed the land to P. P died in 1873; and in 1874 S filed his bill against the heirs of P, claiming that the deed to P was a mortgage to secure money which P had advanced for him to pay D's debt, and asking to be permitted to redeem. It appeared that before D's purchase he agreed with S that if D bought the land for less than his debt, S might redeem it by paying his debt in twelve months; and it was clearly proved by parol testimony, that before the year was out S applied to P, his brother-in-law, to advance the money to pay the debt of D, and it was agreed that the land should be held by P until he was repaid, and he should have possession of the land, except the house and some lots around it, to keep down the interest of the debt. This agreement was carried out. P recognized the rights of S under this agreement until 1859, and did not dispute them until 1869, when he denied the right of S to redeem; but several times afterwards he admitted S's right in conversations with third persons, and he offered to compromise with S, but never could be induced to carry his agreement into effect-HELD: 1. The sale by the sheriff of the land out and out was a nul- 1877. Septem'r Term. Snavely V. Pickle & als. 2. Though the deed to P was absolute on its face, it was competent to prove by parol evidence, that it was intended to be a mortgage or security for a debt; and in this case the proof is full and satisfactory. 3. Whether a deed absolute on its face is a mortgage or conditional sale, is only to be determined in each case by its own circumstances; but in doubtful cases the courts incline to construe the transaction to be a mortgage rather than a conditional sale. 4. It is essential to a mortgage that there should be a debt to be secured. And the agreement in this case that P should advance for S to D the amount of his debt and interest, and the actual payment of the same by P under the agreement, created a debt, and made S the debtor of P for the amount so advanced. 5. For the circumstances which will be looked to, to determine whether a mortgage or conditional sale is intended, see the opinion of Burks, J. 6. The presumption from lapse of time that will bar the right to enforce a mortgage, when the mortgagor is in possession, or will bar the right to redeem where the mortgagee is in possession, is a mere presumption, which may be repelled by any circumstances sufficient to satisfy the mind, that in the particular case it is ill-founded; and in this case the circumstances repel the presumption. 7. An account should be settled; S to be charged with the amount paid for him by P to D, and P charged with rents and any timber cut by him, to be credited at the end of each year, first upon the interest, and if more than that, then upon the principal of the debt. 8. The administrator of P is a necessary party in the suit, and plaintiff must make him a defendant before any further proceedings in the court below. This case was argued at Wytheville and decided at Staunton. It was a bill filed by John Snavely against the heirs-at-law of Philip Pickle, deceased, in the circuit court of Smythe county, to be permitted to redeem what he claimed to be a mortgage upon a tract of land in said [1877." Septem'r county. The facts are stated in the opinion of Judge Term. Burks. V. als. Suavely The cause came on to be heard upon the 30th of April, 1875, when the court dismissed the bill. And there- Pickle & upon John Snavely applied to a judge of this court for an appeal; which was allowed. J. A. Richardson and J. H. Gilmore, for the appellant. C. B. Thomas and J. A. Campbell, for the appellees. BURKS, J., delivered the opinion of the court. This is an appeal from a decree of the circuit court of Smythe county, dismissing the bill of the appellant, filed against the heirs of Philip Pickle, deceased, to redeem a tract of land from an alleged mortgage to said decedent. The appellant being indebted to one Joseph W. Davis in the sum of $1,422.65, by deed bearing date the 20th of February, 1841, in which his wife united, conveyed this land (his own) to a trustee to secure the payment of this debt, with accruing interest, investing the trustee with power of sale for default of payment after four years from the date of the deed. On the 18th day of October, 1842, the appellant was taken into custody by the sheriff of Smythe county on two writs of ca. sa., for debts amounting together to a sum not exceeding $331.00; and was discharged from custody on the same day upon taking the insolvent debtor's oath and surrendering in his schedule of property, and by deed conveying to the sheriff "all his right, title, interest, and claim in and to" the tract of land. aforesaid. |