152 Iowa 368 | Iowa | 1911
On April 30, 1898, plaintiff by quitclaim deed conveyed to defendant two hundred acres of land in Shelby county. On December 22, 1898, he also conveyed to defendant by quitclaim deed another tract of land consisting o'f about one hundred and sixteen acres in the same county. At the time of'the making of the first conveyance defendant executed and delivered to plaintiff a paper, which reads as follows:
Harlan, April 30, 1898. This agreement entered into by and between Joseph F. Beh, party of the first part, and P. F. Cold, party of the second part, witnesseth: That the said P. F. Gold, party of the second part, has this day conveyed by quitclaim deed to said Joseph F. Beh, the following described real estate, to wit: Southwest quarter (S. W. %) °f section eleven (11), and the northwest quarter (N. W. *4) of the southeast quarter (S. E. %) of section fourteen (14), all in township eighty-one (81), range thirty-eight (38), Shelby county, Iowa. The said Beh to redeem said land from the foreclosure sale heretofore made, and said Cold is by this agreement given until March 1, 1899, to redeem said land from said Beh by paying to said Beh the sum of forty-one hundred eighty-eight and three one hundredths ($4,188.03) dollars, with eight (8) percent interest thereon from date, less whatever sums may be realized by said Beh as rent from said land for the year 1898. Jos. F. Beh. P. F. Cold.
Harlan, December 22, 1898. I, Joseph F. Beh, do hereby agree to sell to P. F. Cold the following described real estate, to wit: The south half of the southeast quarter of section 26, also that part of the northwest quarter of the southwest quarter and the northwest quarter of the northeast quarter of the southwest quarter lying north of the right of way of the Iowa- & Southwestern Railway Company in section 36, all of said land being in township 81, range 38, containing 116 acres of land more or less, and to deed said land to said Cold or to whoever he may direct, providing he shall pay to me on or before December 22, 1899, the sum of thirty one hundred dollars and taxes for 1897 and ’98. This contract to be held by M. K. Campbell and to be delivered to said Cold upon payment of above sums and interest thereon from this date at 8 percent per annum. If said Cold fails to make said payment promptly at the time fixed herein then this contract to be canceled. Signed this 22d day of December, 1898. Jos. F. Beh. P. F. Cold.
Upon the execution of each of the deeds the defendant immediately went into the possession of the lands de-. scribed, and has held the same ever since, making valuable improvements thereon, and reducing the same to a high state of cultivation. Plaintiff continued to reside near the lands, and, although he knew that defendant was asserting absolute ownership therein, never made any claim thereto until about the time of the commencement of this suit in January of the year 1903. Plaintiff never received anything from the lands after his conveyance to defendant, and, as already stated, never made any claim thereto until about the time he commenced his suit. The case was pending for some time, and on October 9, 1909, plaintiff filed an amendment to his petition. In the amendment thereto plaintiff claimed that each transaction was in fact a mortgage to secure a loan and that equity
The most casual reading of the many decisions upon the questions involved in the claims above stated will satisfy anyone of the truth of the remark of Chief Justice Kobertson in Edgington v. Harper, 3 J. J. Marsh, 354, that every case must be determined by a consideration of its own peculiar circumstances; that the intention of the parties is the only true and infallible test, such intention to be collected from the condition or conduct of the parties, as well as from the facts of the written contract. There is much of good reason in the proposition that in all doubtful cases the law will construe the contract to be a mortgage rather than a conditional sale, for this construction is most apt to attain the ends of justice and prevent fraud and oppression. Skinner v. Miller, 5 Litt. (Ky.) 86; Pointdexter v. McCannon, 16 N. C. 373 (38 Am. Dec. 591); Conway’s Ex’r v. Alexander, 7 Cranch, 218 (3 L. Ed. 321). And yet a conditional- sale or agreement for a repurchase, if clearly and satisfactorily proved although narrowly watched, will be held valid. 1 Powell, Mortg. 138; Goodman v. Grieson, 2 Ball & Beatt. 278; Pennington v. Hanby, 4 Munf. (Va.) 140; Bloodford v. Zeily, 2 Caines’ Cas. (N. Y.) 124 (4 Kent, 144); Davis v. Thomas, 1 Russ & M. 506. So that finally we have in all these cases to come 'back to the inquiry whether the transaction is really a security for the repayment of money or an actual sale; for though in the language of the court in Ross v. Minshell, 1 Wash. 19, a deed, however absolute upon its face and though the defeasance be by parol, will be deemed a mortgage if really intended to secure a debt. Yet the line of distinction between mortgages and defeasible
Plaintiff claims, and testified upon the trial, that the land in controversy had already been sold upon foreclosure of a mortgage, and that defendant agreed to advance him the money with which to make redemption and take a deed as security for the amount advanced as well as for a debt which plaintiff was then owing the defendant, and that the deed with the agreement for redemption were executed as security for this advancement and loan. The testimony shows, however, that plaintiff at the time of the making of the quitclaim deed was heavily involved finan
The foreclosure sale on the land in sections 11 and 14 was about to expire April 30, 1898, and I made an arrangement with Col. Jack to borrow the money from him. Before the land was sold I made an arrangement with Mr. Beh to loan that money of him, first on the two hundred acres. . . . That is Mr. Beh’s signature and my signature. The contract was made in duplicate; two copies of it, and each of them signed by myself. I kept one and he kept one. The contract was signed by both of us, and he kept one and delivered 'one to me on the day that it was executed. At the same time, after this contract was made out, I gave him a quitclaim deed, the record of which has been offered in evidence in this case. The contract and the quitclaim deed were made at the same time as parts of each other. ... At the time of making this contract, I owed Mr. Beh a little money, some way or other, but I. do not remember now whether I had given any mortgage for it or not. Q. Was that included in this $4,188? A. Yes; you see the amount of the foreclosure was not near that much money; that is, ’the amount named in this contract is considerably in excess of the amount necessary to redeem the two hundred acres of land, and my indebtedness to Mr. Beh was included to make up this amount. Mr. Beh did not deliver or surrender to me the notes that he held against me at the time this contract was executed and quitclaim deed delivered. Mr. Beh redeemed from those sales on the same day that this deed and con
Defendant’s testimony with reference to the same matter is as follows:
I 'have known Fred Cold for probably twenty years and have had numerous business transactions with him. In April, 1898, I had some obligations of Mr. Cold’s. There were two notes amounting to $573 and some cents. They were secured by mortgage upon' real estate. These notes were paid by a deed to this land and other land and these two notes were involved in the transaction of April 30, 1898. Mr. Cold came to me that day, and said there was a foreclosure on this S. W. ]4 of 11, and that there was a certificate of the sheriff on the forty acres, and that he was about to lose the land, and, if I could cancel the mortgage and take a deed that he would give me a deed to this 2Q0 acres of lánd, the S. W. ]4 of H and the N. W.‘ of the S. E. 14 of 14; that is, if I would cancel
This is all the direct testimony with reference to the transaction now in controversy and practically the only other evidence in the case relates to the value of the land at the time the quitclaim deed was made. This testimony to our minds shows that the land was not at that time worth to exceed $25 per acre or $5,000. Defendant took it at the sum of $4,188.03. If he accepted the land as security for a loan, his margin was very small, and about all he could hope. to get out of such a transaction would
If this be the true version of the matter, then, under the authorities, plaintiff had no right to redeem or repurchase after the time fixed, and he was not entitled to notice of forfeiture under section 4299 of the Code. As sustaining these views, see Hopwood v. McCausland, 120 Iowa, 218; In re Shields, 134 Iowa, 559; Schoonover v. Petcina, 126 Iowa, 261; Cody v. Wiltse, 130 Iowa, 139; Tarkington v. Corley, 59 Iowa, 29; Russell v. Finn, 110 Iowa, 301. For authorities sustaining our view as to the con-, struetion of the contract using the word “redeem,” see Robinson v. Cropsey, 2 Edw. Ch. (N. Y.) 138; Pace v. Bartles, 47 N. J. Eq. 170 (20 Atl. 352).
The trial court was in error in finding that the transaction of April 30, 1898, was a mortgage, and the decree in this respect must be reversed. The case will be -remanded for a decree in harmony with this opinion. Reversed and remanded.