Sullivan v. Woods, 50 P. 113

Sullivan v. Woods

50 P. 113 | Ariz. | 1897

Lead Opinion

HAWKINS, J.

(after stating the facts).—The appellant, in the trial of the cause, claimed that the agreement above stated was a defeasance, which changed the deed absolute, executed by defendant to plaintiffs, to a mortgage. Under the complaint and answer filed in the justice court the title to the real property was not in question. The only issue to be tried was the right of possession, and the justice correctly overruled the motion. The defendant did not sign the written agreement. It is by its terms simply an option permitting defendant to repurchase the property within six months from its date. In order for the deed, absolute on its face, with thé *200written instruments, to become a mortgage, they must show, when construed together, that the intention of the parties to both was to secure a debt. Jones on Mortgages, sec. 16, and cases there cited. It would hardly be seriously contended that appellees could have sued appellant for $1,361, and recovered judgment against him for such sum as a debt, for the reason that when he gave the deed the evidence of the debt was surrendered, and the mortgage canceled, and the instruments, construed together, show clearly that it was the intention of all the parties to save the expense of a foreclosure. The appellant pleaded the general issue, and introduced the said agreement, and contended, as stated, that these two instruments constituted a mortgage. Proof of all parties, both plaintiffs and defendant, was heard by the court. When there is a substantial conflict in the evidence, a mere preponderance of evidence is insufficient to prove that an absolute deed was a mortgage. It must be shown that it was executed, delivered, and accepted and intended as a mortgage by clear and certain and conclusive evidence. Perot v. Cooper, 17 Colo. 80, 31 Am. St. Rep. 258, 28 Pac. 391. “When the written papers do not show that security was meant, it is incumbent upon the party seéking to establish a mortgage to show that a mortgage was intended.” Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281. “Por a deed, absolute on its face, to be declared a mortgage, the testimony must establish a clear case.” Ganceart v. Henry, 98 Cal. 281, 33 Pac. 92; Henley v. Hotaling, 41 Cal. 22; Hanford v. Blessing, 80 Ill. 188. “A deed absolute on its face, given by A to B for real estate therein described, and a bond given by B to A agreeing to convey to A a portion of the same property at a stipulated time, although given on the same date, and for the same price, if not intended to be a mortgage, or security for money, by the parties themselves, and not appearing to be such on the face of the instruments, held to be an absolute bargain and sale, and not a mortgage.” Winters v. Swift, 2 Idaho, 61, 3 Pac. 15. “To justify a court of equity in holding a deed absolute on its face to have been intended by its parties as a mortgage simply, the proof should be clear and satisfactory.” Albany Canal Co. v. Crawford, 11 Or. 243, 4 Pac. 113. ‘ ‘ One who, in the absence of fraud or false representations, has executed to a creditor a deed to certain property, and retained possession under a lease, the deed and lease *201providing that the premises should be reconveyed to the tenant upon his payment of the rent and the debt which these instruments were given to secure, is estopped to deny such landlord’s title in an action brought to recover the rent.” Knowles v. Murphy, 107 Cal. 107, 40 Pac. 111.

The appellant also contends that the court- below had no power to set aside the judgment for defendant, and give judgment for plaintiffs, after notice of appeal and bond had been filed. It might probably have been better practice for the court below to have vacated its order denying appellees’ motion for a new trial, and to have granted the same. The court, however, retained power over the judgment during the term, ' and the order which it did make was made during the term; and in the term it has the right to amend, set aside, or annul all orders and decrees made in the case. This, is an inherent power in the court, and cannot be abridged or lost by the act of either party in taking steps necessary to perfect an appeal. There is nothing to appeal from until the judgment and decrees of the court are irrevocable by the court which pronounced them. The judgment in the court below in this case was not irrevocable by that court until the close of the term in which the judgment was entered. Manchester v. Herrington, 10 N. Y. 164; Chiniquy v. People, 78 Ill. 570; 12 Am. & Eng. Ency. of Law, p. 90, and cases cited; Barrell v. Tilton, 119 U. S. 637, 7 Sup. Ct. Rep. 332; 25 Am. & Eng. Ency. of Law, p. 120, and cases cited. An examination of the evidence in the case shows us that th¿ judgment of the lower court is fully sustained.

The only question under the pleadings was the right of possession. There is no evidence that a full and ample consideration was not paid by appellees to appellant for the property. There is no allegation of fraud or false pretense on the part of the appellees in the transaction. The appellant appears to have received full consideration for the premises, and he did not pay the amount stipulated for the use of the premises. The fact that the agreement says that the said appellant is to have the use of the property subject to a monthly payment of fifteen dollars per month as interest, when construed with the deed and instrument, does not make any difference. It was clearly the intent of the parties that it should be for the use of these premises. The appellant has *202not undertaken to pay the amount of $1,361, nor does he offer to do so. We see no substantial error in the record, and the judgment is therefore affirmed.

Rouse, J., concurs.

Dissenting Opinion

BAKER, C. J.

I dissent. The record shows that the appellant recovered judgment against the appellees in the suit on May 3,1895, to the effect that the agreement was in writing, and that the same constituted a mortgage, and that suit was prematurely brought, and that the appellees take nothing by their action; that on May 4, 1895, the appellees made their motion for a new trial, which motion was argued, and overruled by the court on May 15, 1895; that on May 23d the appellees gave notice in open court of an appeal to this court, and on May 24, 1895, filed their bond on appeal, which bond was duly approved and accepted; that upon May 28th the court, upon its own motion, set aside and vacated the judgment so appealed from, and rendered another judgment in the suit for the appellees and against the appellant to the effect that the appellees recover possession of the premises, etc. The court finally adjourned thereafter. The court plainly erred' in vacating the first judgment. The effect of the appeal was to invest this court with all'jurisdiction-over the cause, and deprive the district court of any jurisdiction thereover. This is a well-established rule, and is directly recognized by our statute. “When the bond or affidavit in lieu thereof provided in the preceding sections, has been filed and the previous requirements of this act have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected.” Rev. Stats. Ariz., par. 861. “-Upon the filing of the bonds mentioned in the two preceding sections the appeal or writ of error shall be held to be perfected, and the execution of the judgment shall be stayed, and should execution have been issued thereon, the clerk shall forthwith issue a supersededs.” Rev. Stats. Ariz., par. 865. The following authorities abundantly sustain this view: 1 Black on Judgments, sec. 243; 2 Hayne on New Trial and Appeal, par. 224; 2 Ency. Pl. 6 Prac. 327; Keyser v. Farr, 105 U. S. 265; Boynton v. Foster, 7 Met. (Mass.) 415; Ladd v. Couzins, 35 Mo. 513; Burgess v. Donoghue, 90 Mo. 299, 2 S. W. 303; Allen v. Allen, 80 Ala. 155; Bryan v. Berry, 8 Cal. 130; Kimberly v. Arms, 40 Fed. *203548; Chestnutt v. Pollard, 77 Tex. 86, 13 S. W. 852. Upon an examination of the authorities cited in the main opinion, it will be found that none of them sustain that opinion upon this point. The question is not even involved in them, and I can only account for their use as being an unintentional misquotation.