16 S.D. 96 | S.D. | 1902
This action is by the plaintiff to redeem certain premises alleged to be held by the defendant as mortgagee. Findings and judgment were in favor of the defendant, and the plaintiff appeals. The plaintiff’ was the owner of a quarter sec
It is contended on the part of the apellant that the findings of fact are not supported by the evidence, and that the court erred in its conclusions of law. The two important findings which the appellant contends are not so supported are the seventh and eighth, in which the court finds, in substance, as follows: That the redemption was made by the defendant at the solicitation of the plaintiff to buy the plaintiff’s equity of redemption in said land; that there was no agreement or under standing that such redemption was made for the benefit of the plaintiff, nor was there any agreement between the plaintiff and the defendant that such redemption was in the nature of a loan, nor was there any agreement on the part of the plaintiff to reimburse the defendant for the amount of money advanced by him for such redemption, but, on the contrary, the same was an unconditional sale on the part of the plaintiff, and purchase on the part of the defendant, of said land and premises; that, during the negotiation for the sale of said land and premises by the plaintiff to the defendant, defendant did say to plaintiff that he would sell him the property if he (the plaintiff) would within a year pay him (the defendant) the money advanced, with 12 per cent, interest thereon, but no other or different contract was entered into between the parties regarding said land, and in this respect it was a uniliteral agreement, and the plaintiff had not bound himself to purchase said property, and the relationship of debtor and creditor, mortgagor and mortgagee, or a trust relationship of any character, was never agreed to, or grew'out of said transaction; that the plaintiff never offered to purchase said land, but, on the con
As before stated, the evidence is somewhat conflicting as to the nature of the transaction and the agreement entered into between the plaintiff and the defendant, The plaintiff states the transaction substantially as follows: That he had known the defendant for about 10 years, and that about the 23d of November, 1895, he borrowed from him $100, and gave him a note including $8 which he owed on book account; that at the time he gave the note he told the defendant the time had near
It is contended on the part of the plaintiff that as it appears in this case from the evidence that the defendant agreed to redeed the property to the plaintiff for the amount of money paid out by him on.this redemption, and 12 per cent, interest, at any time within a year, tbe rule applicable to evidence to prove that an absolute deed was intended as a mortgage does
The respondent contends that the execution of the leases by the plaintiff is entirely inconsistent with his claim that the transaction constitutes a loan, and not a sale, but we attach but little importance to the making of these leases. Parties seeking to take an undue advantage of mortgagors situated as the plaintiff was in this case almost invariably seek to cover up the transaction by inducing the party to whom the loan was really made to take a lease of the property; hence the mere fact of leasing should have but little weight with a court of equity, which seeks to discover the real transaction.
Upon a careful review of the evidence in this case, we are inclined to take the view that the transaction between the plaintiff and the defendant constituted, in effect, a mortgage between the parties, and not a conditional sale. The plaintiff, having solicited and requested the defendant to advance the money required to redeem the property from sale, became liable to the defendant therefor, notwithstanding there was no note or memorandum made by the plaintiff agreeing to repay the amount. The relation of debtor and creditor therefore existed between the parties, which is one of the essential requisites to constitute a transaction a mortgage.
We are of the opinion that the evidence in the case clearly preponderates in favor of-the plaintiff, and that the transaction between him and the defendant constituted a mortgage. The court therefore erred in its findings and conclusions of law in favor of the defendant. The judgment of the court below is, reversed, and a new trial granted.