157 P. 181 | Mont. | 1916
delivered the opinion of the court.
This action was originally brought by George W. Newkirk on September 12, 1912. Thereafter he died, and Thomas J. Harrington, his administrator, was substituted as plaintiff in his stead. The defendants, other than John R. Bordeaux and Butte & Superior Copper Company, Limited, are referred to in the pleadings as the heirs of George W. and Sarah J. Beal, husband and wife, both now deceased. What is the relationship of each to the other or to the deceased husband and wife is not important. For convenience, Newkirk will hereafter be referred to as plaintiff, and the Butte & Superior Copper Company, Limited, as the company. The other defendants, except Bordeaux, when reference to them collectively is necessary, will be designated as the defendants Beal. The defendant Bordeaux will be referred to by name.
The complaint herein sets forth the facts upon which plaintiff seeks relief in two counts. The first is in form an action to have a deed absolute, under which the defendants Beal claim title to the property described therein,.decreed to be a mortgage, and the plaintiff declared to be entitled to redeem the property upon payment of the debt secured by it. The second is in form an action to quiet title. The case stated in the first count may be summarized as follows: That on June 30, 1890, the plaintiff
The second count alleges that the plaintiff is the owner of the interest, that defendants assert some claim thereto adverse to the plaintiff, and that such claim is without right. The prayer demands that the defendants be required to disclose fully the nature of their claim, and that it be declared without foundation. The answer of defendant Bordeaux admits that on June 30,
The company filed a separate answer, which does not require special notice. The interest it claims in the property is as assignee of a contract between defendants Beal and A. B. Wolvin and John M. Hayes, entered into on August 7, 1912, embodying these agreements: The Beals agreed to convey to the latter the property for the sum of $25,000, as stated in the complaint. They were to deposit a deed in the First National Bank of Butte, with instructions for its delivery to Wolvin and Hayes, or their assignee, upon the payment of the agreed price. At the time the contract was executed, the deed was deposited and the cash payment made. When this situation was disclosed at the trial, it was agreed by plaintiff, the company, and the defendants Beal, that in case he should succeed in the action he would be bound by the terms of the contract, that he would accept the balance
Though Perry H. Beal filed a separate answer, the defenses interposed by all the defendants Beal to both causes of action were in effect the same. These were denials of the material allegations of the complaint, and affirmative defenses which included the statute of limitations, adverse use, laches and estoppel. Upon all of these affirmative defenses there was issue by reply. The court made elaborate findings and conclusions of law in favor of the defendants, and judgment was entered accordingly. The plaintiff has appealed from the judgment and an order denying him a new trial.
In brief, the court found these to be the facts: On June 30, 1890, the plaintiff, being the owner of the property in controversy, executed and delivered to defendant Bordeaux a deed to it, absolute in form, for an ostensible consideration of $1,000. This deed was intended as a mortgage to secure to Bordeaux the payment of about $200 theretofore loaned to plaintiff by him. No other writing was executed, but it was orally agreed that when the debt should be discharged, Bordeaux would execute and deliver to plaintiff such reconveyance or conveyance as plaintiff should request. This deed was recorded two days thereafter. On November 12, 1890, the plaintiff, having discharged his indebtedness to Bordeaux, prepared and presented to him for execution by himself and wife a deed naming Frank Bateman and his wife, Isadora, grantees, and reciting a consideration of $1,000. He informed Bordeaux that he had sold the property to Bateman and desired to have the conveyance made directly to Bateman and wife in order to save the expense of a second deed, which would be necessary should the conveyance be made directly to plaintiff. This deed was thereupon executed by Bor
As an aid to an understanding of the references made in the foregoing synopsis to the estate of Sarah J. Beal, these admitted facts are pertinent: The property in controversy was not occupied or worked either by plaintiff or defendants Beal. Who paid the taxes does not appear. When plaintiff executed the deed to Bordeaux, Louella N. Newkirk was his wife and joined him therein. She was divorced from him in December, 1894. At the time of the various transactions recited, Sarah J. Beal
It will be noted that the court found as a fact that the
Counsel invoke the rule of the maxim, “Once a mortgage,
Under the facts disclosed in this ease, however, it is not important to inquire what notice Bateman had. If it was the purpose of plaintiff to sell the property to him, and the plaintiff received the consideration from him, it would be permitting plaintiff to perpetrate a palpable fraud, should he be awarded the right to redeem. Upon the assumption that Bateman knew of the condition of the title, the deed was made under the direction of plaintiff. Both he and Bateman treated the deed as vesting the title in Bordeaux. This deed, therefore, lost its character as a mortgage and became a deed absolute in fact. Both treated it as conveying title, and Bateman having presumptively paid the stipulated consideration on the theory that he was obtaining title, the plaintiff cannot now be heard to say
The court did not find upon the issue of the statute of limitations. Its conclusion that the evidence was insufficient to
Affirmed.