94 P. 978 | Utah | 1908
This action was brought by plaintiff against James Solomon and his wife and Nephi and William S. Duerden to have an instrument purporting on its face to be a deed declared a mortgage, and the title to the real estate described therein quieted in plaintiff upon payment of the mortgage indebtedness. The case was tried to the court, who found the facts substantially as follows: In 1891 the plaintiff, who then was the owner and in possession of the real estate, mortgaged it to one Charles Morrell to secure an indebtedness in the sum of $2,-000. At its maturity Morrell demanded payment, and threatened foreclosure proceedings. In August, 1897, plaintiff ex•ecuted. and delivered a deed to Morrell, with the understanding that it should be a mortgage, and, as such, it was received and accepted by Morrell for the security of the indebtedness which then amounted to $2,210, which the plaintiff was required to pay within one year thereafter together with interest at the rate of eight per cent, per annum. In June, 1898
It is not contended that it was incompetent to show the real object of the deed by evidence aliunde the instrument. It is conceded that in cases such as this courts of equity will look beyond the terms of the instrument to the real transaction, and, when that is shown to* be one of security and not of sale, they will give effect to the actual contract of the parties, and that the rule which excludes parol evidence to contradict or vary written instruments does' not forbid an inquiry into the object of the parties in executing and receiving the instrument. The contention made is that a presumption arises that the instrument is what it purports on its face to be, an absolute conveyance of the land; that to overcome this presumption and to establish its character as a mortgage the evidence must be clear and convincing; and that the evidence was not sufficient to overcome this presumption, especially in that’ the evidence did not sufficiently show that any in
Viewing the case from the standpoint of the evidence on behalf of plaintiff, the proof is clear and direct that the transaction between the parties was that of a loan and not a sale, and that the deed received by the defendant was security for the money paid by him to Morrell for the plaintiff’s benefit. True the defendant testified that the transaction was not a loan, but a sale. He however, testified that he was partly in the business of lending money, and frequently had made loans and took deeds instead of mortgages for security. He further testified, in substance, that the plaintiff had frequent interviews with him, and was very solicitous of obtaining a loan from him, but that he told plaintiff he had no money to lend on the property, but that he would buy it; that the plaintiff told him if some one like him would not buy the property plaintiff and his wife would be put out; that he thereupon bought the property from Mr. Morrell through Mr. Stephens,
We are therefore of the opinion that the findings of the