43 P. 557 | Idaho | 1896
This is an appeal from a judgment of the district court for the county of Ada. This action is sui generis. It is not an action in ejectment, because it alleges neither possession, ownership, nor ouster. It contains none of the essentials of a complaint under the statute for quia timet. It alleges a contract between plaintiff and defendants by which plaintiff agreed to sell to defendants, fox the sum of $800, to be paid within one year, with interest at the rate- of one per cent per month, certain real estate situated in Ada county, Idaho. This contract is not, as appears, predicated upon any ownership or possession, right, or title in or by the plaintiff. To this complaint a general demurrer was interposed, which was overruled by the-district court. This was error. The wisdom of Solomon, accentuated by the legal lore of Coke and Mansfield, could not devise a judgment which this complaint would support. The evidence, as appears by the record, shows this state of facts:
On the thirty-first day of December, 1891, the defendants were the owners of, and in possession of, a certain tract of land situated in Ada county, Idaho; and on that day they purchased of the plaintiff certain lands in Kansas, and, to secure him for the purchase price thereof, they executed to plaintiff a deed of said land in Ada county, taking back from plaintiff, at the same time, a contract or agreement, of which the following is a copy:
“This agreement, made and entered into this thirty-first day of December in the year of our Lord 1891, between Henry G-. Wilson, of Boise City, Ada county, and state of Idaho, party of the first part, and Ellen Hayes Thompson, of Boise City, Idaho, party of the second part, witnesseth, that the said party of the first part, in consideration of the covenants and agreements on the part of the said party of the second part hereinafter contained, agrees to sell and convey unto the said party of the second part, and the second party agrees to buy, all that
“[Seal] ' H. U. WILSON.
“Signed, sealed, and delivered in- presence of O. L. Miller.
“Duly acknowledged on January 2, 1892, and recorded February 3, 1893, in the records of Ada county.”
The character and purpose of the transaction is shown by the evidence of the defendant Ellen Thompson and S. L. Tip-ton.
Mr. Tipton testifies as follows: “My name is S. L. Tipton. Am an attorney at law by profession. I know W. L. Thompson
Mrs. Ellen Thompson testifies as follows: “I remember going to Mr. Wilson’s office with my attorney, and making arrangements about this transaction. In the first place, Mr. Hartley traded property to me in Kansas. I went to Mr. Wilson, and I says: ‘We are bit on that property in Kansas. I would like those four lots back, in order to pass Mr. Hartley his property back the same as I got it.’ And I asked Mr. Wilson what he would take for those lots, and he said, ‘$200.’ I went there with Mr. Tipton, and I asked Mr. Wilson for those four lots back. He said he was willing to do it for $800, and got me to give him this forty acres for security for the $800. I agreed to pay that $800 in one jrear from that time. This was reduced to writing, in the shaj>e of a bond for a deed back. He agreed to take the $800. I was, under the circumstances, obliged to allow him the $800. I didn’t have a dollar. I expected to settle this when Mr. Hartley settled with me. I gave him that security for those lots back in Kansas, and I gave him as such security my forty acres sagebrush ground. He agreed, whenever I paid him the $800, to redeed the property to me. Those papers were executed in an unfinished room in the back part of Odd Fellows’ Hall. Mr. Wilson’s office was there, and these papers were executed in that office. I never executed any other deed to Mr. Wilson on my forty acres. That is the only thing I gave him. (Papers handed witness.) This is the security that I gave to Mr. Wilson for the $800. Mr. Wilson at the same lime executed a paper to me, it was a contract or a bond for a deed. It was for that ranch back whenever I paid him the $800. I reside on the forty acres in controversy. It is the farm that I live on. I have no more land out there. At the time I executed this deed, he gave me back a contract to reconvey the same property on the payment of that $800.” Cross-examination: “My husband was not there all of the time. I talked with Mr. Wilson, asking him for the four lots, after I returned from Kansas without Mr. Thompson, because I deeded them to Mr. Wilson. It was my deed. There was a-note given. 1 had to give a note. Mr. Wilson — I couldn’t help myself. I
This testimony is undisputed, and, as far as it goes, is conclusive, and, it seems, establishes the character of the deed by defendants to the plaintiff, and that the same was given and intended by the parties as a mortgage. The case, as shown by the evidence, is so clearly within the rule given by this court in Kelley v. Leachman, 3 Idaho, 392, 29 Pac. 849, that it seems-to us unnecessary to go into a discussion or citation of authorities.
Exception was taken by defendants to the refusal of the court to give the following instructions: “The jury is instructed that, if a promissory note was executed by the defendants to the plaintiff, then I instruct you that that fact is strong evidence to show that the deed was intended as a mortgage.” We think there was no error in refusing this instruction, for want of' definiteness. It does not refer to either time when the promissory note was given, nor the amount thereof.
Exception is also taken by defendants to the refusal of the court to give the following instructions: “The jury is instructed that if you find from the evidence that the defendants were in the peaceable possession of the land in controversy in this action on the thirty-first day of December, 1891, and at that date they executed a deed, absolute on its face, to the plaintiff, as security only, and that at the same time, or as a part of the same transaction, the plaintiff executed the agreement, bearing same date, to reconvey the land to the defendant Ellen Hayes Thompson upon payment by the defendants, or either of them, of the consideration named in the deed, with interest, taxes, etc., by a