114 N.W. 306 | N.D. | 1907
This litigation arose in the district court of Stutsman county, and the case is here for trial de novo. The object of the suit is to have a certain deed, absolute in form, adjudged a mortgage, and for an accounting as to the amount due thereon after deducting the value of certain rents and profits of the premises, collected by the defendant. The issues were tried in the court
Certain facts are not in dispute. It is conceded that the plaintiff Lizzie Smith was on the 24th day of February, 1904, the owner in fee of the premises in controversy, being lot 13, block 11, of Randall’s addition to the village of Kensal, in Stutsman county, and that on said date the plaintiffs Lizzie Smith and her husband, James Smith, executed and delivered to the defendant Jensen a deed of conveyance to said premises, absolute in form, and ' contemporaneously therewith a contract was entered into between the parties, by the terms of which Jensen agreed to reconvey said premises-to Lizzie Smith upon the payment on or before September 1st, thereafter of the sum of $600. It is also undisputed that such payment was not made or tendered on or prior to said date, and that thereafter, and on October 22, 1904, Jensen, in consideration of the sum of $710, executed and delivered to the defendant Stutsman County Bank an absolute deed of conveyance to said premises. Briefly stated, the contentions of the various parties were and are as follows: Plaintiffs assert that the deed from them to Jensen was executed and delivered merely for the purpose.of securing an indebtedness due by them to Jensen, amounting to about $540, and that the defendant bank took this deed from Jensen with full knowledge that the deed from plaintiffs to Jensen was a mere security transaction. Defendant Jensen asserts that the deed from plaintiffs to him was 'intended to be and was an absolute conveyance,, and not a mortgage, and that the agreement entered into between them was an independent contract, whereby he agreed to sell to plaintiffs the premises for the consideration of $600, provided plaintiffs made payment of such sum on or before September-1st. Pie also contends that the defendant bank puichased the premises from him without notice of plaintiff’s rights. The defendant bank’s contention is practically the same as that of Mr. Jensen. Defendant La Frantz did not appear in the action, and defendant Kunert disclaims any interest in the premises in controversy. Certain other facts are in dispute, relative to the value of the premises and the rents and profits thereof, which will be hereafter noticed. The findings and conclusions of the trial court are substantially in accord with the plaintiffs’ contentions. Among other things, that
This court in McGuin v. Lee, 10 N. D. 160, 86 N. W. 1714, quoted with approval the following rule: “There can be no question that a party may make a purchase of lands, either in satisfaction of a precedent debt or for a consideration then paid, and may at the same time contract to reconvey the lands upon the payment of a certain sum, without any intention on the part of either party that the transaction should be, in effect, a mortgage. There is no absolute
As to the burden of proof, it is also well settled by this court that, in order to destroy the recitals in a deed or other contract, the proof must be clear, strong and convincing, “and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt.” Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58; McGuin v. Lee, 10 N. D. 160, 86 N. W. 714; Wells v. Geyer, 12 N. D. 316, 96 N. W. 289.
The following rules are statutory in this state:
“Sec. 6151. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act is to be deemed a mortgage, except when in the case of personal property, it is accompanied by an actual change of possession in which case it is deemed a pledge.”
“Sec. 6153. The fact that a transfer was made subject to a defeasance on a condition may, for the purpose of showing such transfer to be a mortgage, be proved, except as against a subsequent purchaser or incumbrancer for value and without notice, though the fact does not appear by the terms of the instrument.” Rev. Civ. Code 1905.
It goes without saying that before the grantors in a deed, intended as mere security, can compel a reconveyance, they must pay or tender all the indebtedness due the grantee or his assignee according to the terms of the agreement for such reconveyance. In other words, before such equitable relief will be extended to such
With the foregoing rules in mind, we have carefully examined the testimony in the case at bar and have reached the same conclusion is that arrived at by the trial court, except as to certain findings and conclusions which we will hereafter notice. Upon the principal question of fact in dispute, which is as to whether the deed from plaintiffs to Jensen was an absolute conveyance or merely a mortgage, we entertain no doubt that the same was intended as a mortgage merely. The evidence is clear and convincing that such was. the intention of the parties. Both plaintiffs testified positively to this effect, and their testimony is fully corroborated by the other evidence in the record. The testimony is too .voluminous to warrant a full statement thereof in this opinion, but we will briefly review the same. The testimony was undisputed that the Smiths were indebted to Jensen in a sum between $500 and $600, find that Jensen had caused their personal property to be attached in an action instituted by him against them to recover such indebtedness, and for the purpose of procuring a release of such attachment the deed in question was given. At the time of executing this deed the exact amount of such indebtedness was not known, but it was considered that such indebtedness, including the costs of the attachment suit, would reach the sum of about $600. It was agreed that, if it was less than that amount, the Smiths would be given credit at Jensen’s store for the balance. The consideration mentioned in the deed was therefore fixed at $600. Immediately after executing the deed, but as a part of the same transaction, a written agreement was executed by Jensen, whereby he agreed to reconvey the premises to Lizzie Smith upon the payment by plaintiffs or either of them to him of $600 on or before September 1st following. It does not appear that any negotiations had been carried on between these parties prior to the date such deed was executed with reference to the sale and purchase of the property. This in itself is very significant. At the date the alleged sale was made the property was worth a much.larger sum than $600, the testimony being somewhat conflicting as to such
The facts aré similar to those in the recent case of Rose v. Gandy, 137 Ala. 329, 34 South. 239, cited in 2 Current Law, 912, wherein it was said: “It will be observed that the case is not one involving the issue whether the conveyances were intended as mortgages or unconditional sales. It is whether from the understanding between
It follows as a necessary conclusion that plaintiff Lizzie Smith on the payment or tender of the amount of the indebtedness secured thereby is entitled to a reconveyance of the property, unless the defendant bank purchased the same from Jensen in good faith and without knowledge of the character of the deed aforesaid. The trial court found that the bank had knowledge sufficient to apprise them of the real character of the transaction, and we think this finding was fully warranted by the evidence. Upon this point defendant Jensen testified that at the time he gave the deed to the bank he talked with Mr. Sinclair, the officer of the bank who negotiated the deal, and told him all about the deal. He testified as follows: “Q. Did you tell him anything about the deal you had with Mrs. Smith? A. I think I told him about how Mrs. Smith had a chance to buy that property back for a consideration of $600. Q. You told him there was a written instrument to that effect? A. I think I told him that. Q. You talked about Mrs. Smith with
It is urged by appellants’ counsel that plaintiffs have no standing in a court of equity by reason of delay in asserting their •rights, and also because they have not paid or tendered to defendant bank the indebtedness secured by such deed. We think ■such eontert'fion without merit. It was unnecessary to pay or tender ••such indebtedness prior to the commencement of the action. The •sum necessary to effect a redemption as well as plaintiff’s right to redeem were in dispute, and it was therefore only necessary for plaintiffs in their complaint to offer to do equity by alleging their willingness to pay such sum as may be found due. The rule is as stated in 2 Current Law, 911, and cases cited, “that to maintain an ■action to have an absolute conveyance declared a mortgage, tne plaintiff must offer to redeem. Mack v. Hill, 28 Mont. 99, 72 Pac. 307. But tender need not be made prior to commencing suit. Reese v. Rhodes, 3 Ariz. 235, 73 Pac. 446; DeLeonis v. Walsh,
The judgment appealed from in so far as it adjudges that said deed is merely a mortgage, and that plaintiff Lizzie Smith is entitled to a reconveyance of the premises upon payment of the net amount due to the bank, was correct and is affirmed; but, in view of the state of the record, this court is unable to determine with any degree of certainty the equitable sum which plaintiffs should be required to pay to entitle the plaintiff Lizzie Smith to a reconveyance of the property. We have therefore concluded to leave this branch of the case open for further adjudication by the trial court. That court is directed to take an account between the parties for the purpose of determining the correct amount of the indebtedness secured by said deed, including interest at 7 per cent per annum, from February 24, 1904, which is due from me plaintiffs to the defendant bank as equitable assignee thereof, and also for the purpose of determining the amount of rents and profits, actually received by defendant bank from the property aforesaid, with interest, after deducting therefrom such sums, if any, as the defendant bank or its assignor, Jensen, may have properly paid out or expended for taxes, insurance and repairs, or for the discharge of valid liens thereon, and after deducting the net amount, if any, of such rents and profits from the total amount of such indebtedness, that court is directed to enter judgment in conformity with the foregoing opinion, no costs to'be allowed either party on this appeal.