167 N.W. 232 | S.D. | 1918
G. H. Brown, the owner of the property, had, with fraudulent purpose, attempted to donvey this property to one W. H. Brown; that such' dead was ■void, and that plaintiff (took a deed from W. H. Brown with full notice of -the facts rendering the deed to W. Hi. Brawn void. Defendants asked that a restraining order be denied; that the judgment be declared a lien on the land; and for sudh other and further relief as to the court might seem just. Under -the undisputed fadtis, plaintiff is not a. bona fide holder for value and without notice, and has no greater rights than W. H. Brown woulkl have, if he hlad not given a deed to plaintiff.
“That at alll times since the making o(f the deed from Giles H. Brown to' Walter IT. Brown, as above set forth, the said Walter H. Bildwn has declared anid maintained thlat the said*208 deed was not intended far a mortgage, but wa's intended to be a'nld was an absolute conveyance of ¡tíre lanld tlrerein described to hum, and that at no time did the 'salid Walter IT. Brown disclose or acknowledge the ¡true character of the transaction; .and ■ that tine plaintiff, as the grantee of the said Whiter H. Brown, has at ■no timie soiug(ht 'to treat the conveyance ’as a mortgage, but has at all tilines and in this action! contended that the same was an absolute oonvejahoe of the title of ¡the :aforesa'idl land to Whiter H. Brown, 'and has at no time disclosed the true nature of the transaction, or relied upon the aforesaid deed as. la mortgage,-but bias dotare into Court repires'entinig that the ©aid dead was a valid conveyance of title.”
It -is unnecessary for trs to review the evidence, but we will call attention to a few matters which Show, beyond possibility oi dispute, that tlie conveyancé was, as between the parties thereto, a mortgage: There wias an indebtedness existing from grantor to grantee. There was no fixed consideration for the conveyance. The grantee held title for the sole purpose of selling the (property and applying the proceeds to the indebtedness. The ■amount-of credit could nclt be known until the net proceeds of ■the sale were determined. It is perfectly 'clear, fiiom the above facts and the /evidence as a whole, that, if ait any. time before the grantee mfaide a sale, the grantor had paid his indebtedness, the grantee would have ceased to have bad any rights ¿n and to such land. Under tire undisputed facts tíre grantee had none of the nights and! was subject to none of tine liabilities incident to absolute ownership; he could not have held the property and re-7 fused tel sell it amid apply the proceeds on the 'debt; Ire was bound to acldount for proceeds of craps or rentáis received; if improvements on the property had been burned, the grantor would have been the loser; if a gold miñe had been discovered thereon, any mineral toierefrOm would have belonged to thie grantor and not to the grantee.
“As between the parties', one Who receives a -deed absolute in form-, -anld apparently having the legal title, is, when fee facts showing fee real .character of fee transaction appear, to be treated as having only a lliien on fee land; and uipon fee payment, of the -debt 'his interest in fee land and his lien thereon ceas-es. A 'reconveyance is not, in such oases, necessary to reinvest the grantor or Ms -heirs wife the title, but only to clear up the record title, ias in fee nature of -a- satis faction piece.”
TM's question has been before fee -courts in numerous cases, which, wliil be found cited ini Jones on Mortgages, § 20, in -support of fee proposition that:
“E-ven an 'absolute dleed- without any defeasance, if in fact made to -secure a debit, so that in equity it is a mortgage, passes no title to the grantee.”
In Murdock v. Clarke, 90 Cal. 427, 27 Pac. 275, the court adopted the following words of its commissioner:
“As it is admitted that the conveyances were intended only to secure fee payment of money, they were mere mortgages, and did not pass the legal title. ‘It is fee settled- rude in this state that if 'a dee-d, absolute in foam, was made merely to secure an indebtedness (to fee grantee), it is a mere mortgage, and does not pass tibe titile.’ Smith v. Smith, 80 Cal. 325 [21 Pac. 4, 22 Pac. 186, 549]. See, also, Hall v. Arnott, 80 Cal. 352 [22 Pac. 200]; Booth v. Hoskins, 75 Cal. 275 [17 Pac. 225]; Raynor v. Drew, 72 Cal. 309 [13 Pac. 866]; Healy v. O’Brien, 66 Cal. 519 [6 Pac. 386]; Taylor v. McClain, 64 Cal. 514 [2 Pac. 399]. Anid fee fact that the mortgagee's- were p-ut in possession' does not change fee rule. As was saiid in Smith v. Smith, above cited:*210 Such a dead gives a mere Men upon the property, just as if the parties bad put their agreement in the farm of a mortgage.’ And it has been decided that in this state the interest of 'tire mortgagee is -not enlarged nor affected by the feat that he is in possession under tire mortgage. Dutton v. Warschauer, 21 Cal. 609 [82 Am. Dec. 765].”
Tlo the same effect is the holding in Snyder v. Parker, 19 Wash. 276, 53 Pac. 59, 67 Am. St. Rep. 726. The fullest, and, to our minds, the most conclusive, discussion of this question is to be found in Flynn v. Holmes, 145 Mich. 606, 108 N. W. 685, 11 L. R. A. (N. S.) 209, wherein the following is quoted from Shattuck v. Bascom, 105 N. Y. 41, 12 N. E. 284:
“Although the conveyance from the defendant to Coleman was in form a dead, it was in fact 1a mortgage, and had all the incidents of a mortgage. Coleman could not,, upon that dead, have maintained an action of ejectment against (hits grantor or any other person. All he acquired by the deed was a lien upon the land for the security of his debt, and, upon payment of the debt, Shiis interest in the land and lilis lien thereon would absolutely cease. Reconveyance by him to thiiis defendant was not necessary to reinvest him with the absolute title, a'nd was necessary only fa dear up the record title. * * *”
Our fanner oplimio-n herein is -reversed, and the judgment -and order appealed from -are affirmed.