14 S.D. 476 | S.D. | 1901
This action, between parties claiming land adversely, resulted in a decree adjudging-plaintiff to be the owner thereof in fee, and the defendants'appeal..
■ Deeming the greater portion of respondent’s additional abstract,
According to a well-settled rule, “this court will presume that the decision of the trial court or referee upon the weight of such evidence is correct, and it is only when this court is satisfied that there is a clear preponderance of the evidence against such decision that such presumption will be overcome, and the decision of the trial court or referee reversed.” Randall v. Burk Twp., 4 S. D. 337, 57 N. W. 4; Feldman v. Trumbower, 7 S. D. 408, 64 N. W. 189; Mining Co. v. White, 10 S. D. 198, 72 N. W. 462. In order to justify a.finding that a deed absolute on its face was given to secure a debt, the proof must clearly show a mutual understanding on the part of' the grantor and the grantee that the instrument was executed, delivered an accepted as a mortgage. Tilden v. Streeter, 45 Mich. 533, 8 N. W. 502; Jasper v. Hazen (N. D.), 58 N. W. 454; Rue v. Dole, 107 Ill. 275; Henley v. Hotaling, 41 Cal. 22. Even a deed and contemporaneous contract to reconvey must not be construed as a mort