Bartels v. Davis

• Decision Date: 22 June 1906
• Citation: 85 P. 1027,34 Mont. 285
• Parties: BARTLES v. DAVIS et al.
• Court: Montana Supreme Court

85 P. 1027

34 Mont. 285

BARTLES v. DAVIS et al.

Supreme Court of Montana

June 22, 1906

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by E. J. Bartels against Vernie A. Davis and another. From a judgment for plaintiff, defendants appeal. Affirmed.

McBridge & McBride, for appellants.

Peter Breen and Jeremiah J. Lynch, for respondent.

HOLLOWAY J.

On May 14, 1903, Vernie A. Davis and Sewell W. Davis executed and delivered to E. J. Bartels their promissory note for $300 due six months after date, with interest at 2 per cent. per month, and to secure the payment of said principal and interest at the same time executed and delivered to Bartels a deed, absolute on its face, conveying to him a large number of city lots located in the city of Butte. Contemporaneously with the execution of the note and deed there was executed by Bartels and Vernie A. Davis a defeasance agreement which refers to the note and deed, declares that the deed was intended only as security for the payment of the $300 and interest represented by the note, and then contains these recitals: "Whereas, the said Vernie A. Davis desires the right to sell from time to time during the life of this agreement, such portions of said property as she may be able to find a purchaser for, it is agreed, by and between the parties hereto, that upon the said Vernie A. Davis finding a purchaser for any one or more of the said lots hereinabove described, that the said first party will make, execute and deliver to the purchaser thereof, a proper conveyance transferring said lot to said purchaser, upon the said Vernie A. Davis paying to the said E. J. Bartels, for each lot so sold the sum of fifty ($50.00) dollars, the said amount paid to apply upon the note hereinabove referred to. It is further expressly understood and agreed, that in the event of the said Vernie A. Davis paying or causing to be paid to the said E. J. Bartels, the amount of the said note, principal and interest, that thereupon the said E. J. Bartels will reconvey to the said Vernie A. Davis, or to the party named in writing by her, all of the real property hereinabove described, which shall not at said time have been sold under the terms of this contract hereinabove contained." On November 25, 1903 Bartels commenced this action to foreclose the mortgage alleging that the deed was intended to be and was in fact a mortgage, and that no part of the principal or interest represented by the note had been paid. The complaint is in the usual form. The defendants answered admitting the due execution and delivery of the note and deed; that the deed was understood to be a mortgage, and that no part of the principal or interest represented by the note and secured by the mortgage had been paid. The answer contains a denial that there is anything due to the plaintiff from the defendants or either of them, and a general denial of all the allegations of the complaint not specifically admitted or denied. The answer then sets forth as an affirmative defense the facts that the defeasance agreement was executed as herein set forth; that on November 15, 1903, a purchaser was procured for two of the lots described in the deed; that thereupon $100 was tendered to Bartels and demand was made upon him that he execute to such purchaser a deed for said lots; that Bartels refused to do so and claimed that he (Bartels) was the owner of the lots; and that by reason of Bartels' refusal to accept such tender and convey said lots and otherwise comply with the terms of such defeasance agreement, the defendant Vernie A. Davis suffered damages in the sum of $1,000. The prayer of the answer is that Vernie A. Davis be decreed to be the owner of the lots described in the deed and...