9 S.D. 442 | S.D. | 1896
Plaintiff seeks to have two deeds, absolute in form, adjudged to be mortgages, and a decree permitting him to redeem the property described therein. The pleadings and proof concerning each are substantially the same. Consideration of one will dispose of both. It is alleged in the complaint that on August 18, 1891, plaintiff borrowed of defendant $100, orally agreeing to pay back to him $125 in 60 days thereafter; that, to secure such loan, plaintiff executed and delivered to defendant a mining deed of a one-tenth interest in a certain lode; that the interest on such loan was illegal and usurious, being at the rate of 127.- per cent per month. Defendant denies all the allegations of the complaint not admitted, and alleges that plaintiff, for the consideration of $100, sold and conveyed the lode to defendant; that, on the same day, defendant made an agreement with plaintiff for a conditional sale of the property, and executed a deed conveying the same to plaintiff, which was placed in escrow', to be delivered to plaintiff at any time within sixty days, provided he paid defendant $125, otherwise to be returned to defendant; that plaintiff failed to comply with the terms of the escrow, in that he failed to pay defendant $125; and that, after the expiration of 60 days, it was surren
Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk. In giving the decision, the facts found and conclusions must be separately stated. Laws 1893, Chap. 72; Comp. Laws, § 5067. This statute does not contemplate a recital of merely evidential facts, or the language of the pleadings. It requires a statement of the ultimate facts responsive to the issues arising upon the pleadings — a finding upon each material issue of fact involved in the action. Gull River Lumber Co. v. School Dist. No. 39, 1 N. D. 500; 48 N. W. 427; Anderson v. Alseth (S. D.) 66 N. W. 320; Jandt v. South, 2 Dak. 46, 47 N. W. 779. Simple as the rule seems to be, its application to particular cases frequently causes great perplexity. In many instances it is extremely difficult to determine what are “ultimate facts,” as distinguished from evidence, on the one hand, and conclusions of law, on the other. Usually, the court’s findings should substantially conform to the allegations of the pleadings, but they are not always stated with accuracy and precision. The court should determine what material ultimate facts are at issue, and make its findings thereon, guided by the same considerations which would control it in framing special interrogatories for a jury. Statements which would be sufficient in a special verdict are sufficient when made by the court. The case at bar