Robitaille v. Boulet
161 P. 163
Mont.
1916
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On September 27, 1909, Frank Robitaille, by a deed absolute in form, conveyed to J. W. Boulet a ranch, consisting of approximately 1,100 acres, situated at Feely Station, in Silver Bow county. In June, 1912, Robitaille died, and the administrator of his estate instituted this suit to have the deed de*69dared to be a mortgage, to secure an accounting of rents and profits, and to redeem the property. The only material issue raised by the pleadings is whether the conveyance was intended to evidence an absolute sale or security for a debt. The trial resulted in favor of defendant, and plaintiff appealed from an order denying him a new trial.

[1] 1. On the Motion to Dismiss. In the preparation of his brief, counsel for appellant apparently made no effort to comply with rule 10, subdivision 3b, of the rules of this court (123 Pac. xii). There are not any specifications of errors, but since there is but a single contention made, viz., that the evidence is insufficient to sustain the findings, we overlook the shortcomings of counsel in this instance in order to reach the merits of the controversy. The motion to dismiss is overruled.

[2] 2. On the Merits. The solution of the question presented depends altogether upon the intention of the parties to the transaction of September 27, 1909. (27 Cyc. 1007.)

[3, 4] The evidence offered by the plaintiff tended to prove that the trans-action had its inception in an application by Robitaille to Boulet for a loan; that Robitaille was in financial straits and pressed by a creditor who had a mortgage upon his ranch; that Boulet gave to Robitaille an agreement of some sort, by the terms of which the ranch could be repurchased at the end of one year for a fixed sum; that Robitaille retained possession of the ranch; that for the subsequent years the ranch was assessed to Robitaille; that Robitaille made payments of considerable sums to Boulet after the transaction; that a contemporaneous agreement with reference to Robitaille’s personal property lends aid to plaintiff’s theory; and that the ranch was reasonably worth a very much greater sum than passed as the consideration for the deed. These facts and circumstances, if standing alone and unexplained, would warrant a finding that the deed was intended as a mortgage to secure an existing indebtedness. (Murray v. Butte-Monitor Tunnel Min. Co., 41 Mont. 449, 110 Pac. 497, 112 Pac. 1132.)

*70Unfortunately for plaintiff, the facts and circumstances enumerated above do not stand alone, and are not unexplained. Moreover, in this court, plaintiff must sustain the burden of showing that the evidence preponderates against the trial court’s findings, (Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76.) The evidence as a whole is in sharp conflict as to the character of the possession by Robitaille after September 27, 1909, as to who defrayed the expense of operating the ranch and improving it, as to who paid the taxes, and as to the value of the ranch at the time the deed was given. Defendant offered evidence to the effect that Robitaille’s application for a loan was rejected altogether; that the transaction was a sale outright; that for a valuable consideration, subsequently passed to him; Robitaille surrendered his contract to repurchase; that the transaction relating to the personal property was independent of the one relating to the real estate; that after September 27, 1909, Robitaille frequently disclaimed any interest in this ranch, and finally made, homestead entry on 160 acres of government land located near by. An explanation of the payments made by Robitaille to Boulet, after September 27, 1909, was also tendered.

The trial court, with the witnesses before it, and therefore in a better position than are the members of this court to pass upon their credibility and the weight to be given to the testimony, accepted defendant’s theory of the transaction, and found that the deed was intended to evidence an absolute sale, and was not intended as a mortgage to secure an indebtedness. Having accepted defendant’s evidence as true, that finding is amply supported by the record. (Morrison v. Jones, 31 Mont. 154, 77 Pac. 507.)

Appellant has failed to sustain the burden of showing that the evidence preponderates against the findings, and for this reason the order is affirmed.

Affirmed.

Mr. Chief Justice Beantly and Mr. Justice Sanneb concur.