Kollock v. Bennett, 100 P. 940

Kollock v. Bennett

100 P. 940 | Or. | 1909

Mr. Justice King

delivered the opinion of the court.

From the synopsis of the issues, it will be observed that the points in controversy are narrowed to the contention on the part of appellants, controverted by respondent, that the deeds to Kollock were intended as mortgages only;, while, with reference to appellants’ deeds, respondent asserts, but appellants deny, that they were executed without consideration, were not delivered, and are void. After a careful examination of the record, including the testimony adduced, we fully concur in the, findings and conclusions of the trial court. It is conceded that each of the parties deraigned title through a common grantor, and undisputed that appellants’ deeds were accepted with full knowledge of the previous transfers to Kollock. Since the execution of the Kollock deeds, the realty in dispute has not been in the possession of any one, except such possession as has been exercised by *401respondent’s agents, who platted the land, selling parts thereof for the purposes contemplated.

1. It is first maintained that the Kollock deeds are, in legal effect, mortgages only, and that the property described therein, by reason of the alleged transfers thereof to appellants, is held subject to their right of redemption, in support of which it is argued that while oral testimony is admissible for the purpose of proving the conveyances mortgages, verbal testimony, under Section 797, B. & C. Comp., is inadmissible to establish any trust relationship in connection therewith. This objection, however, is overcome by a showing that Kollock received the deeds, and, acting under the oral agreement made in connection therewith, has, through his agents, platted and sold parts and parcels of the land in controversy. Cooper v. Thomason, 30 Or. 161, 175 (45 Pac. 296); Starr v. Kaiser, 41 Or. 170, 174 (68 Pac. 521).

2. The proof satisfactorily discloses that the deeds to Kollock were intended to transfer a complete title, and that it was fully understood at the time of the execution thereof that he should have full power to sell the property, execute deeds to purchasers, and apply the proceeds in cancellation of the Title Guarantee & Trust Company’s claims, and account to his grantors for any sum remaining. By virtue of these transactions, respondent became, not a mortgagee, but a holder of the legal title, and liable only to account as trustee for the proceeds of sales from the property when made, and entitled to maintain a suit in his own name with reference thereto. Ladd v. Johnson, 32 Or. 195 (49 Pac. 756); Title Guarantee & Trust Co. v. Northern Counties Investment Co. (C. C.), 73 Fed. 931; Wright v. Conservative Investment Co., 49 Or. 177 (89 Pac. 387); King v. Miller, 53 Or. 53 (97 Pac. 542).

3. Moreover, since Section 516, B. & C. Comp., provides that “any person claiming an interest or estate *402in real estate not in the actual possession of another may maintain a suit in equity against another who "claims an interest or estate therein adverse to him, for the purpose of determining such conflicting or adverse claims, interests, or estates,” it would seem that, whether respondent’s title be deemed legal or equitable, there could be no question as to his right to maintain a suit to determine all adverse claims affecting such titles (White v. McSorley, 4J7 Wash. 18: 91 Pac. 243); but all doubts on the subject, if any, are completely set at rest by the decisions of this court in Ladd v. Mills, 44 Or. 224 (75 Pac. 141), and Holmes v. Wolfard, 47 Or. 93, 99 (81 Pac. 819).

4. Whatever may have been the conditions under which the deeds to appellants were given, or the manner and form of their execution, having been executed subsequent to, and with full knowledge of respondent’s deeds, they were accepted subject to his rights, making a determination herein of the sufficiency of their execution unnecessary.

The decree of the court below is affirmed.

Affirmed.