130 Ky. 269 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
In 1893 Tucker purchased a horse from Witherbee for $110. To secure the payment of this sum, he exe cuted to Witherbee a deed, conveying to him a small
At the time Tucker executed the deed to Witherbee the land was uninclosed, and no person resided on it. Nor was any of it inclosed at any time until the railroad company inclosed the part purchased by it. A general demurrer was sustained to the petition, and,
The appellant Tucker insists that the writing was a mortgage, and that Witherbee’s remedy was the same as that of any other mortgage; that if he wished to collect his debt, he should have brought suit to enforce his lien upon the land. The contention of appellees is that the writing was a conditional sale, with the privilege upon the part of Witherbee to redeem the land at any time before the- expiration of 18 months from the date of the writing, and, having failed to redeem it within that time, the title vested in Witherbee. The relation of debtor and creditor existed between the parties at the time the writing was executed. It shows on. its face that it was intended tmerely as security for the purchase price of the horse, and that it was contemplated by the parties that this price should be paid within the time named. The paper has many of the distinguishing features of a mortgage, and we think it was in fact so intended to be. In doubtful cases the inclination of the courts is to consider the transaction a mortgage rather than a conditional sale, because such construction will more frequently attain the ends of justice and prevent oppression. It is safer to say that a paper having the characteristics of a mortgage is in fact a mortgage than to say it is a conditional sale; and the courts will not look around for reasons in case of’doubt to construe a paper to be a conditional sale, when it can with as much, if not more, propriety be said to be a mortgage. The question is in many cases, a very narrow one, and often the line between conditional sales and mortgages is not well defined. There is no doubt that parties competent to contract can agree upon terms that will amount to a conditional sale,
It is also urged in support of the judgment below that Tucker was guilty of such laches as amounts to an estoppel or waiver upon his part of the right to insist that the paper shall be construed to be a mortgage. It is true that Tucker might at any time have tendered the money which the conveyance secured and demanded a reconveyance, but his failure to do this does not estop him. His laches was not any greater
Nor was it necessary that Tucker in bringing this suit or before should have tendered the amount due Witherbee. Witherbee has a lien as security for his debt, and may look to that if Tucker is insolvent. Nor is the point well taken that the action cannot be maintained, because Tucker, although suing in part to quiet his title, was not in possession of the land. The relief sought in part is a cancellation of the deed made by Witherbee to the railroad company, and upon this point we deem it sufficient to cite the cases of Herr v. Martin, 90 Ky. 377, 14 S. W. 356. 12 Ky. Law Rep. 359; Packard v. Beaver Valley L. & M. Co., 96 Ky. 249, 28 S. W. 779, 16 Ky. Law Rep. 451; Eversole v. Virginia Iron, Coal & Coke Co., 122 Ky. 649, 92 S. W. 593, 29 Ky. Law Rep. 151; Fox v. Cornett, 92 S. W. 959, 29 Ky. Law Rep. 246.
Wherefore the judgment is reversed, with directions to overrule the demurrer to the petition, and for further proceedings in conformity with this opinion.