Beindorf v. Thorpe

• Decision Date: 28 June 1921
• Docket Number: Case Number: 11935
• Citation: 203 P. 475,1921 OK 256,90 Okla. 191
• Parties: BEINDORF v. THORPE et al.
• Court: Oklahoma Supreme Court

1921 OK 256

203 P. 475

90 Okla. 191

BEINDORF v. THORPE et al.

Case Number: 11935

Supreme Court of Oklahoma

Decided: June 28, 1921

Syllabus

¶0 1. Mortgages--What Conveyance a Mortgage. Every instrument purporting to be an absolute or qualified conveyance of real estate or any interest therein, but intended to be defensible or as security for the payment of money, shall be deemed a mortgage and must be recorded and foreclosed as such. (Section 1156, Revised Laws 1910.)

2. Same--Deed--When Construed to be a Mortgage. A deed absolute on its face, and a separate agreement executed on the same date as the deed wherein the grantee agrees to reconvey the same tract of land to the grantor, upon the payment of the consideration named in the deed with interest and taxes by a specified, time, constitute together a mortgage, and under such instruments the right of redemption is not waived.

3. Same--Deed--When Presumptively a Mortgage. Where, at the time of the execution of a deed, the grantor and grantee enter into a separate written contract under the terms of which the grantee agrees upon the payment of the consideration named in the deed with interest within a specified time to reconvey the lands to the grantor, the transaction is presumptively a mortgage.

J. S. Estes and Twyford & Smith, for plaintiff in error.

Morris & Jameson, for defendants in error.

KENNAMER, J.

¶1 This action was filed in the district court of Caddo county by Charles Beindorf, plaintiff, against Pearl O. Thorpe, Mayme Wyatt, and Pearl Thorpe, as administratrix of the estate of Hiram T. Dayton, deceased, defendants. The plaintiff in his petition prayed the Judgment of the court decreeing a certain deed executed on the 11th day of July, 1910, by the plaintiff to Hiram T. Dayton, purporting to convey 160 acres of land located in Caddo county, to be a mortgage. The plaintiff alleged that on the same date of the execution of said deed, and as part and parcel of the same transaction, a written contract was executed, under the terms of which the deed executed was to be only a mortgage on the lands described in said deed and contract. The written contract entered into at the same time as the execution and delivery of the deed is as follows, to wit:

"This contract made and entered into on this 11th day of July, 1910, by and between H. T. Dayton, of Barton county, state of Missouri, party of the first part, and Chas. Beindorf, of Caddo county, state of Oklahoma, party of the second part, witnesseth:

"That the said first party has agreed to grant, sell and convey unto said second party the following described real estate, situated in Caddo county, Oklahoma, to wit: The south one-half of the southeast one-quarter of section twenty seven (27) and the north one-half of the northeast one-quarter of section thirty-four (34), in township six (6) north, range nine (9) west of the Indian Meridian, for the sum of two thousand seven hundred ($ 2,700.00) dollars, to be paid as follows: Two thousand seven hundred ($ 2,700.00) on or before the 11th day of July, 1913, with interest on the same at the rate of eight per cent. per annum payable annually, and it is hereby expressly agreed by the parties hereto that the case of default of the said second party in paying the principal sum when due or default in the payment of any of the interest thereon shall forfeit all the rights of the second party under this contract, at the election of the said first party. It is further expressly agreed that the said second party shall pay all taxes on said premises and shall keep the said property insured for the benefit of the said first party at the expense of the said second party, failure of the said second party to pay said taxes or insurance to forfeit all rights under this contract. It is further agreed that the said second party shall have possession of said premises during the life of this contract and shall be entitled to the rents and profits therefrom. It is further agreed that the said second party shall have the privilege to pay all or any part of said principal sum at any time prior to the said 11th day of July, 1913, and the interest on the part of said principal sum so paid stop at the date of payment.

¶2 "It is further expressly agreed and understood that the said second party shall keep the premises and the improvements thereon in a good condition and shall not allow any unnecessary waste or wear and tear thereon. It is further expressly agreed that time is the essence of this contract. "In witness whereof the parties hereto have affixed their hands and seals the date and year above written. "H. T. Dayton, First Party. "Charles Beindorf, Second Party." The defendants filed answer, admitting the death of Dayton, party of the first part mentioned in the contract, as pleaded by the plaintiff, the allegations as to heirship and representation, but alleged that the transaction, as pleaded by the plaintiff in regard to the sale of the land, was an outright sale for a consideration of the extinguishment of a debt of twenty-seven hundred ($ 2,700.00) dollars. Upon the trial of said cause before the court judgment was entered in favor of the defendants, decreeing that the plaintiff had no interest in the lands involved in the action. The plaintiff has appealed to this court and assigned numerous assignments of error as grounds for reversal of the judgment. The record discloses that the plaintiff, Charles Beindorf, for several years prior to July, 1910, had borrowed various sums of money from H. T. Dayton until he had become indebted to Dayton in the sum of twenty-seven hundred ($ 2,700.00) dollars, and that the lands in controversy were under mortgage to secure the payment of the borrowed money; that on the 11th day of July, 1910, Beindorf and Dayton went to the law offices of Starkweather & Morris and had prepared a warranty deed, which recited the payment of a consideration, of twenty-seven hundred ($ 2,700.00) dollars by Dayton to Beindorf, said deed being executed by Beindorf to Dayton. That as part and parcel of the same transaction the written contract, as herein set out, was executed in duplicate, each party retaining a copy; that Beindorf remained in possession of the premises until sometime in 1914, when he delivered possession of the premises in controversy to Dayton. Beindorf contended in the trial of said cause that the premises were delivered to him under an agreement by which Dayton was to credit Beindorf with the rents from the premises on his indebtedness to Dayton. Numerous witnesses testified on the trial of said cause in behalf of each of the parties to this action. The most serious conflict in the testimony presented by the record is as to whether or not on the date of the execution of the deed and contract the notes, which Beindorf had executed to Dayton, evidencing the money which he had borrowed from Dayton, were surrendered and delivered to Beindorf at the time the deed and contract were executed; it being contended by the defendants in the action that the execution of the deed and contract constituted an outright sale of the property to Dayton and that the contract constituted a conditional sale, or in effect gave Beindorf an option to repurchase the land within two years from the date of the contract, and that this contention is sustained and supported by reason of the evidence that Dayton surrendered the notes, which he held against Beindorf when the deed and contract were executed, thereby extinguishing the debt. The trial court found that the deed was executed in full satisfaction and extinguishment of the debt due by Beindorf to Dayton, and that the same constituted an absolute conveyance of the property in controversy; that immediately thereafter, and as a part of the same transaction, Dayton executed the written contract agreeing to sell the property in...