42 Cal. 169 | Cal. | 1871
On the 29th of March, 1867, Barry and wife, by their absolute deed of that date, reciting a consideration of five thousand dollars, conveyed to the plaintiff the land in controversy. On the same day the plaintiff executed and delivered to Barry a writing in the nature of a defeasance, which recites that on that day Barry and wife had sold the land to the plaintiff for the sum of five thousand dollars, which was paid to them, and then provides that if Barry shall pay to the plaintiff the said sum of five thousand dollars, on the first day of the ensuing October, with interest at the rate of one and one quarter per cent per month, and also any taxes that may have been assessed on the land for the year 1867, if the same shall have been paid by the plaintiff or assessed to him, and for which he may be personally liable, “ and also the necessary costs and expenses that may accrue by reason of any suit or suits that may be necessary to recover possession of the land,” then that the plaintiff would reconvey the land to Barry, by good and sufficient quitclaim deed; but in case Barry should fail to pay said sums at the stipulated time, “ then the above obligation to be void, and neither party held or bound by the terms of the same.” It was further provided that Barry was to retain the possession of the land until the said first day of October, and was to be entitled to the growing crop, and that, if the crop should not be harvested or removed from the land by the said first day of October, it might be removed by Barry within a reasonable time thereafter. The deed and defeasance were both duly acknowledged and recorded on the same day, and the principal question in the case is, whether the two instruments taken together consti
If we consult the face of the deed and defeasance put in evidence in this case, without resorting to the parol evidence, we should hold the transaction to be a defeasible sale, and not a mortgage. The deed is not only absolute on its face, but the defeasance recites that “the said E. T. Farmer has this day bought of said John Barry and Haney L. Barry, his wife, certain land,” etc., “for which the said E. T. Farmer has paid to the said John Barry the sum of five thousand dollars, in gold coin of the United States.” It further provides that Barry is to retain the possession until the time stipulated for repayment of the money, and
Parol evidence was introduced by each party to explain the transaction, and there is a substantial conflict in the testimony in respect to the acts and intentions of the parties. Barry testifies that he distinctly understood the transaction to be a loan of money, and a conveyance byway of security; whilst the plaintiff testifies, fully and explicitly, that it was not a loan of money, but a purchase, with an agreement to reconvey on condition. It is not our province to weigh these conflicting statements; and the Court below, which heard the witnesses, having decided in favor of the plaintiff, we would not be justified in setting aside its judgment on the ground that it was against the weight of the evidence, even though we might be inclined to the opinion that the preponderance of proof was on the other side.
Judgment affirmed.
Mr. Justice Temple, being disqualified, did not sit in this case.
[The above case was decided at the July Term, 1870, but for some cause not reported. It is cited in Page v. Vilhac, page eighty-three of this volume; and Page v. Vilhac was printed before this case was placed in the printer’s hands. Reporter.]