118 Minn. 462 | Minn. | 1912
This is an action to have deeds absolute on their face declared to be a mortgage, and to direct a reconveyance of the premises to plaintiff upon his payment of the sum found due from him. The issue was as to whether defendant Nelson was the owner in fee of the land, or whether plaintiff was the owner, subject to a mortgage in the form of a quitclaim deed, with an oral agreement giving plaintiff the right to a reconveyance on payment of the indebtedness. There was a decision in favor of plaintiff. This appeal is from the judgment entered on such decision.
The questions here are: (1) As to whether the findings are sustained by the evidence; (2) as-to whether there was any prejudicial error on the trial, duly excepted to by defendant. A statement of the admitted facts follows:
It must be conceded that the facts above recited, all admitted or conclusively established, make a strong case in favor of defendant’s contention that the transaction in 1899 put an end to the relation of mortgagor and mortgagee that admittedly existed before, and made Nelson the owner in fee of the farm. The evidence to show
It cannot be said to a certainty that the oral agreement testified to is wholly inconsistent with the admitted or undisputed facts, and we must hold that the decision of the trial court cannot be disturbed. It is true that plaintiff and his wife were interested witnesses, and that plaintiff’s attorney, by reason of family and professional relationship to the plaintiff, may be deemed not entirely a disinterested witness. It is true, also, that Horton W. Nelson was by insanity prevented from giving his version of the transaction. But it is not for this court, ordinarily, to determine the credibility of witnesses. The trial court believed the witnesses for plaintiff, and, whatever the rule as to the amount or character of evidence necessary in a case of this kind, we are unable to say that the decision is not sufficiently sustained, or that there was an abuse of discretion in denying a new trial.
This is not the usual case of a deed absolute on its face shown by parol evidence to be a mortgage. Here the relation of mortgagor and mortgagee admittedly existed at the time the quitclaim deed was given. It is, therefore, rather a case of the purchase by the mortgagee of the mortgagor’s equity of redemption. Such a transaction is valid, if the purchase was in good faith and for a fair consideration; but equity scans such sales with jealous care, and requires their fairness to be clearly established. De Lancey v. Finnegan, 86 Minn. 255,
We reach the conclusion that the findings are sustained after a full consideration of all the evidence, and with a full appreciation of the strength of defendant’s ease. We cannot assume the functions of a trial court. The question was purely one of fact, the evidence was conflicting, and we find no grounds for saying that the trial court was not justified in believing plaintiff’s witnesses.
2. Error is assigned in the admission of the testimony of plaintiff as to conversations with Horton W. Nelson, over the objection that it was testimony of conversations with a person since become insane, and therefore inadmissible under the statute.
The record shows that the law as to the admissibility of this evidence was argued “pro and con by counsel,” and that the court reserved its ruling and received the evidence. At the close of the direct testimony of plaintiff, defendant moved to strike from the record all the testimony of the witness in regard to conversations with Nelson, for the reason that the latter was proven to be insane. This motion was denied, but no exception appears to have been taken to the ruling. So far as the record shows, this was the only effort of defendant to obtain a ruling of the court after the testimony was received subject to the objection. Treating the denial of this motion to strike out the testimony as a definite and final ruling of the court, it is plain that the error, if error there was, is not before us for review. No exception having been taken to the ruling, defendant could only take advantage of the error by a motion for a new trial in which the ruling was specified as error. No motion for a new trial was made in this case. It follows that the question is not properly before us for decision. Stitt v. Rat Portage Lumber Co. 98 Minn. 52, 107 N. W. 824. The motion to amend the findings, by adding a finding that defendant was insane, did not raise the point.
3. The finding of the trial court that the rental value of the farm
4. There was no error in the court’s refusal to find the evidentiary facts requested by defendant.
Judgment affirmed.