13 N.M. 524 | N.M. | 1906
OPINION OP THE COURT.
— In this case onfy four alleged errors are assigned the first and third of which relate to matters of practice and, which ujader the decision we propose to render in .this case it will not be necessary for us to pass upon. The second assignment that the “district court erred in sustaining the so-called amended demurrer filed' in .said cause,” necessarily carries with it the fourth assignment of error, that the “court erred in dismissing the complaint/ for if error was .committed in sustaining the demurrer as a matter of course the court committed error in dismissing the suit for failure of the appellant to amend the complaint when the demurrer, was sustained.
The principal grounds relied on by the appellee in the original as well as the amended demurrer are the statute of limitations; the statute of frauds — that is that the contract and agreement to reconvey the real estate in controversy was not in writing, and that the complaint does not set out a cause of action.
The words used in these sections seem to us to be as plain as any in the English language. There can be no doubt as to their meaning. The statute of limitations in cases of fraud is four years and the four years begin to run from the time the fraud is discovered by the party aggrieved.
As in this case‘the complaint alleges that, “it was not until about the month of July, 1902,” that the plaintiff learned of the fraudulent claim of the defendant to be absolute owner of the real estate in controversy, it seems to be apparent that the statute did not begin to run “until about the month of July, 1902,” and as the complaint was filed on November 24th, 1903, it is within the statutory period, and this ground of demurrer should have been overruled.
If the complaint shows on its face that the contract sued on is within the statute of frauds, and also shows affirmatively that it is an oral contract, then the weight of authority is that such pleading can be demurred to, on the ground that it shows affirmatively the existence of a valid defense to the contract alleged; but if the contract is pleaded in a manner sufficient to satisfy the common law rules, before the enactment of the statute of faruds, and if it does not appear affirmatively that it is an oral contract/ it is pleaded in a manner sufficient to satisfy the statute, and the adverse party must raise the question of the statute of frauds in some way other than by demurrer. A- compilation of authorities sustaining these propositions will be found in 2 Page on Contracts, pages 1136 and 1137, notes 2 and 6.
In the case at bar, the complaint sets out that the conveyances in question, “were made at the instance and importunity of the said defendant, and upon the promise of the said defendant, then and there made, that he would account to this plaintiff for the excess of the proceeds of the said real estate over and above the indebtedness of this plaintiff to the said defendant;” but the pleader so far as w'e have been able to discover from a caerful inspection of the transcript, nowhere states that the promise made by the defendant to account to the plaintiff was made orally or in writing, consequently it does not appear affirmatively from the pleadings that the contract was an oral one, and if it does not so .appear, then so far as this ground was concerned the demurrer was not well taken.
The contention of the plaintiff, however, is that the deeds given by him, and those which he caused to be given to the defendant, although absolute on their face, were in reality mortgages and that the defendant promised upon request, (hut whether such promise was in writing, or oral, does not appear), to reconvey to the plaintiff the pieces of real estate described therein, whenever the indebtedness of the plaintiff to the defendant should be paid off and discharged.
If this allegation'is true, and as to that we express no opinion, as evidence alone will determine, then the contract for the reconveyance of the realty so conveyed by the instruments which are in form deeds, but in reality mortgages, on pajunent of the debt to secure which they were given, does not come within the statute since the duty to reconvey exists independent of the contract. 2 •Page on Contracts, page 798.'
The decision of the Supreme Court of the United States, are uniform in admitting parol evidence to show that an absolute conveyance, is in fact a mortgage, Russell v. Southard, 12 How. 139; Morris v. Nixon, 1 How. 118; Sprigg v. Bank of Mount Pleasant, 14 Pet. 201; Hughes v. Edwards, 9 Wheat. 489; 1st Jones on Mortgages, 4 Ed. Sec. 285.
However created, a lien (and a mortgage is a lien), is not an interest in land, but merely a security for the payment of a debt and a contract to release a mortgage is not within the statute. Seymour v. Mackay, 126 Ill. 341; Brooks v. Jones, (Iowa) 82 N. W. 434; Stevenson v. Adams, 50 Mo. 475; Hemmings v. Does, 125 N. C. 400; Taylor v. Taylor, 112 N. C. 27; Bean v. Bean, 28 S. C. 607.
As the statute of frauds, so far as appears from the record, does not at the present time constitute a valid defense to this action, as by the demurrer the defendant admits the truth of everything in the complaint which is well pleaded, including the allegation that the deeds although absolute on their face were in reality but mortgages, and that the property would be recovered to plaintiff upon the payment by him to defendant of the amount clue by plaintiff to defendant, it follows that this ground of the demurrer was not well taken and should have been, overruled.
We hardly think that anything would be gained by quoting in exienso from the complaint filed in this cause, to show that it sets forth a cause of action, and we therefore refrain from so doing. Some matters in it might have been pleaded more fully, but we think that taken as a whole it states a cause of action.
For the reasons given above, the judgment of the lower court is reversed, and the case is remanded to the district court of Bernalillo county, with instructions to overrule the amended demurrer, and for further proceedings, in accordance with this opinion;, and it is so ordered.
