95 P. 717 | Or. | 1908
Lead Opinion
delivered the opinion of the court.
“Mr. Hall met me on the street, down near Walcott’s, and asked me if I would make a survey for him, and stated that he was buying a piece of property there, but that Mr. O’Connell was going to pay for the surveying, and to drop into O’Connell’s store and see if it was all right. I went into Mr. O’Connell’s store, and he repeated the same thing and wanted me to make the survey, and stated Mr. Hall was buying a piece of property and that he was going to advance the money, and would pay me for the survey.”
Hall is corroborated by Puskaline, who claims to have been present when the arrangement was made between Hall and O’Connell for the loan of the money. We think the evidence satisfactorily establishes that O’Connell loaned to plaintiff the money to pay for the land and that Hall procured the deed, to be executed in O’Connell’s favor, as security for the repayment thereof, and that defendant holds the title to the land as security.
3. A deed absolute on its face given as security for the repayment of a loan may be shown by parol to be intended in fact as a mortgage. This has been frequently so decided by this court, beginning with Hurford v. Harned, 6 Or. 362. But it is urged by the defendant that this is a purchase by defendant with his own" money and a conveyance to him from the vendor and not from the plaintiff, and therefore does not come within the above rule, and is within the statute of frauds. But as we understand, the rule that a deed absolute on its face, given as security, may be shown by parol to be a mortgage, applies equally to the case of a purchaser borrowing the purchase money, and causing the title to pass directly from the vendor to the creditor as security for the loan.
In Campbell v. Freeman, 99 Cal. 546, 547 (34 Pac. 113, 114), where the agreement and defeasance were in parol, it is held: “The rule is familiar that when, upon a purchase of real property, the purchase money is paid by one person, and the conveyance is made to another, a resulting trust immediately arises. * * The same rule prevails, if the money paid by the party taking the title is advanced by him as a loan to the other, and the conveyance is made to the lender for the purpose of securing the loan. But in the latter case the purchaser cannot demand the conveyance until he has paid the money advanced, and for which the land is held as security. In such a case the grantee holds a double relation to the real purchaser—he is his trustee of the legal title to the land and his mortgágee for the money advanced for its purchase—and, as in the case of any other mortgage which is evidenced- by an absolute deed, is entitled to retain the title until the payment of the claim for which it is held as security.”
In Fleming v. Georgia R. Bank, 120 Ga. 1023, 1026 (48 S. E. 420, 422), Carr purchased the lot in question from Dickey. Defendant advanced the price, and the conveyance was made by Dickey to the defendant as security; and it is said: “While his (Carr’s) interest
The decree of the lower court is reversed, and one entered here in accordance with this opinion, with costs to appellant.
Reversed : Decree Rendered.
Rehearing
Decided August 4, 1908.
On Petition for Rehearing.
delivered the opinion of the court.
But, even though it were admitted that defendant is entitled to the value of such improvements as he made,
As to Kruse’s lease, it is sufficient to say that he is not a party, nor is any claim by him disclosed as an issue, and if he leased from the defendant without knowledge of plaintiff’s rights, or with plaintiff’s consent, equity will protect him. What is said as to the want of issues as to the improvements is true also as to the taxes. They have not been pleaded; but, in view of plaintiff’s offer to include them in his tender, we have added them to the debt so far as they are admitted by him. It will be proper to include in the amount due defendant the $15 paid to the surveyor and the $5 paid for the deed; and to this sum, also, the clerk shall add the amount of taxes paid by the defendant on this property subsequent to the tax for the year 1904, to be ascertained by certificate of the sheriff of the county.
The former decree will be modified to that extent.
Reversed: Modified on Rehearing.