Kinney v. Smith, 113 P. 854

Kinney v. Smith

113 P. 854 | Or. | 1911

Opinion by

Mr. Chief Justice Eakin.

1. Plaintiff appeals from that portion of the decree which requires him to redeem; his contention being that by his complaint he did not seek to redeem, but to have the deed decreed to be a mortgage.

The' complaint does not state the amount of the debt secured, only states that the deed was intended as a security for such sum as may be found to be due. There is no pretense that there was any mistake or error in the terms of the instrument. No doubt defendant’s motion to require plaintiff to make the complaint more definite by stating the amount of the debt secured should have been allowed. When plaintiff seeks equitable relief, in having the deed adjudged to be a mortgage, he must show a willingness to do equity by paying the mortgage debt: 27 Cyc. 1030; Cowing v. Rogers, 34 Cal. 648; Heacock v. Swartwout, 28 Ill. 291.

*1612. There is no doubt of his remedy in equity to enforce his right of redemption, but he has no such remedy to reform or add additional terms to an instrument that is in the form and contains all the terms originally intended. The evidence of the whole transaction offered to establish the character of the deed discloses that there was no uncertainty as to the amount of the debt. The lower court evidently treated the complaint as one to redeem. The defendant has not appealed. Therefore he is not disputing the findings of the trial court that the deed is a mortgage. After reading the evidence, we are satisfied with that finding. The $2,000 being the expressed consideration of the deed, it undoubtedly stood as security for the $300 as well as the $1,700; the latter sum being payable at any time within 90 days. The defendant contends that it was a conditional sale, but the courts are inclined to construe the transaction as a mortgage if, upon the evidence, there is any doubt as to whether it was intended as a conditional sale or as a mortgage.

3. The courts generally incline against conditional sales and give the benefit of any doubt arising upon the evidence in favor of the grantor’s right to redeem: Jones, Mortgages, 379; Stephens v. Allen, 11 Or. 188 (3 Pac. 168); Elliott v. Bozorth, 52 Or. 391 (97 Pac. 632.)

4. In this State a mortgage does not pass the title to the mortgagee. It is only a lien upon the property, the title remaining in the mortgagor (Adair v. Adair, 22 Or. 115, 130: 29 Pac. 193); and this is true regardless of the form of the instrument. It applied to an instrument in form a deed, but intended as a mortgage: Thompson v. Marshall, 21 Or. 171 (27 Pac. 957); Adair v. Adair, 22 Or. 115, 130 (29 Pac. 193); Marx v. La Rocque, 27 Or. 45, 47 (39 Pac. 401); Ladd v. Johnson, 32 Or. 195, 201 (49 Pac. 756); Dekum v. Multnomah County, 38 Or. 253, 260 (63 Pac. 496); Starr v. Kaiser, 41 Or. 170, 175 (68 Pac. 521); *162Marquam v. Ross, 47 Or. 374, 423 (78 Pac. 698: 83 Pac. 852: 86 Pac. 1). The title to the property cannot pass to the mortgagee except by a foreclosure, as provided by the statute or a relinquishment by the mortgagor. Thompson v. Marshall, 21 Or. 171 (27 Pac. 957); Lovejoy v. Chapman, 23 Or. 571 (32 Pac. 687.)

5. Therefore, treating this as a suit to redeem, as the lower court did, all the facts being before the court, the decree of the lower court will be modified to the effect that plaintiff may redeem the property within 30 days after the mandate is filed in the lower court, or, in default thereof, the property shall be sold as upon foreclosure in the manner provided by law, plaintiff to recover costs in the court below, neither party to recover costs in this court. Modified and Affirmed.