96 N.W. 289 | N.D. | 1903
The plaintiffs bring this action to recover the possession of certain lands, of which they claim to be owners. The defendants present, as an equitable defense, the contention that the deed by which such lands were .conveyed by the defendants to the plaintiffs, and the contemporaneous agreement by which it was agreed that they were to be reconveyed to defendants, constitute merely a mortgage, which authorized them to retain possession and to redeem. The defendants have not waived their right to a jury trial upon the issue respecting plaintiffs’ right to possession; still the determination of the equitable issues in favor of the defendants has put an end to the litigation, and obviates th? necessity of trying the legal issues involved. Arnett v. Smith (N. D.), 88 N. W. 1037. This action was tried to the court without a jury, and is brought to this court for trial de novo, under section 5630, Rev. Codes 1899.
The first question for consideration is whether the original transaction between these parties constituted a loan of money merely, or an absolute conveyance of title. To declare the deed and contract to reconvey a mortgage requires a showing that is clear, satisfactory, and specific. Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454
Plaintiffs, because of defaults in payments which were due, sought to gain possession by notice addressed to and served upon the defendants, declaring a forfeiture, and requiring defendants to vacate the premises. Acting under the mutual mistake of law that the defendants’ rights could be thus forfeited, the agreement was made, as already stated, that the Geyers might remain in possession until April 1, 1902, when they should vacate, and surrender all rights
The trial court found that defendants did not receive adequate consideration for the execution of the waiver or relinquishment, and allowed the defendants, or either or them, to redeem. A sufficient tender of payment being made, the final judgment declares that the defendant Marian A. Geyer is the true and lawful owner of the premises in controversy, and such judgment is affirmed.