109 Neb. 472 | Neb. | 1922
By this action Thomas W. G. Cox, the plaintiff, seeks to have a certain deed executed by himself and wife to the defendant declared to be a mortgage, and that he be permitted to redeem therefrom.. The defendant denied that the deed was intended to be a mortgage, and by way
The plaintiff’s brief contains no formal assignments of error or points of law relied upon for a reversal of the judgment, but it is quite apparent from the argument that he contends that the judgment is contrary to the evidence. The record shows that on September 2, 1919, the plaintiff purchased from one Erskine a tract of land in Banner county, consisting of 865 acres, for an agreed price of $61,362.89. He paid thereon in cash $21,587.89, and agreed to pay a further sum of $6,000 on March, 1, 1920, and also assume a mortgage then upon the land for $33,775. A warranty deed was executed, in which the plaintiff was named as grantee, and the deed, together with the contract of purchase, was placed in escrow in the bank at Kimball to be delivered to the grantee upon the payment of $6,000 on March, 1, 1920. As the day for making this payment approached, it became apparent to the plaintiff that he would experience difficulty in meeting the payment. Sources from which he expected money failed, and he was unable to borrow the amuunt necessary to make the payment at the bank, although he made application at several places for such a loan. Under these circumstances the plaintiff and defendant entered into negotiations which, according to defendant’s testimony, terminated by the defendant purchasing the land. The defendant paid to the plaintiff a sum sufficient to meet the $6,000 due on the purchase price of the land; also an amount necessary to pay the lease rent on a school section leased by the plaintiff, and also to pay interest on the $33,775 mortgage, and the taxes on the land, in all aggregating the sum of $7,676.90. At that time the plaintiff and defendant Avent to the bank
The plaintiff’s testimony sustains his theory that the advances of' $7,676.90, by the defendant -were- a loan; that plaintiff agreed to- pay in redemption of the property $11,000. The plaintiff now claims that the contract was usurious; that the deed and the assignment of the lease were given, only - as security for the loan, and prays that he be permitted to redeem the - land- on payment of the amounts advanced by the' defendant, with interest.
The only -witness as to the main features of the contract were' the plaintiff and the defendant; and their testimony is in direct contradiction.- According- to the plaintiff’s version,-the transaction was a loan; while, according to the--defendant’s testimony, it'was an out and out sale with a contract to repurchase.
The -rule of law governing this case is announced in Snoke v. Beach, 105 Neb. 127, wherein it is said: “Whether- a-deed absolute on its face is a sale or a mortgage depends upon the intention of the parties, and such intention is to -be gathered from the declarations and conduct of the parties, as well as- from the papers which they subscribe *- ■ * "" The rule is also established in this state that, where it; is sought to wary-the effect of a deed absolute on its face "by parol testimony so as to declare
From an examination of the entire record, Ave are led to conclude that the plaintiff failed to establish his case by clear, convincing, and satisfactory proof, Avhich the laAv requires.
The judgment of the district' court is, therefore,
Affirmed.
