Book v. Beasly

• Decision Date: 03 April 1897
• Parties: Book, Appellant, v. Beasly
• Court: Missouri Supreme Court

40 S.W. 101

138 Mo. 455

Book, Appellant, v. Beasly

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

T. C Dungan for appellant.

(1) The defendant, alleging the deed to be a mortgage only, must make strict, clear, satisfactory, and convincing proof that it was a mortgage, and that it was not an absolute or conditional conveyance. 1 Jones on Mort., secs. 335, 262, 267, 272; 1 Greenleaf Ev., secs. 45, 97, 200; Ringo v Richardson, 53 Mo. 394; Worley v. Dryden and cases cited, 57 Mo. 226; O'Neil v. Capelle, 62 Mo 203; Schradski v. Albright, 93 Mo. 43; Kirby v. Harsh, 16 N.W. 86; McCormick v. Herndon, 31 N.W. 303; Sloan v. Becker, 26 N.W. 730; Becker v. Howard, 44 N.W. 755, which seems peculiarly applicable under the facts herein; McArthur v. Robinson, 62 N.W. 713; Wilson v. Parshall, 29 N.E. 297; Blake v. Taylor, 32 N.E. 401; Keithley v. Wood, 38 N.E. 149; Ahern v. McCarthy, 40 P. 482; Dignan v. Moore, 36 P. 146. (2) The effect of the conveyance must be determined by the peculiar facts and circumstances that surround it, and mark its character, and indicate the intentions of the parties. The intention of the parties is the only safe criterion, and the only true and infallible test. The character of the transaction is fixed at the inception of it, and is, and remains, what the intention of the parties, at the time, makes it, and no new promise, agreement, or understanding can afterward alter or change such character, unless upon a new consideration between the parties. 1 Jones on Mort., secs. 245, 256-258, 263-269; Pomeroy, Eq. Jur., sec. 1194; Blake v. Taylor, 32 N.E. 401; Rue v. Dole, 107 Ill. 275; Fisher v. Greene, 31 N.E. 174; Becker v. Howard, 44 N.W. 755.

H. S. Kelley and H. T. Alkire for respondent.

(1) A conveyance intended as a security for a loan, though absolute in form, will be treated as a mortgage. Cobb v. Day, 106 Mo. 278; Zittlosen Tent Co. v. Bank, 57 Mo.App. 19. And a warranty deed, executed to secure advances of money, though absolute on its face, may be construed as a mortgage. Hach v. Hill, 106 Mo. 18. (2) Where the evidence shows that the deed was not intended to be absolute, but it is doubtful whether it was a conditional sale or a mortgage, the doubt should be resolved in favor of its being a mortgage. King v. Greves, 42 Mo.App. 168; White v. University Land Co., 49 Mo.App. 450. (3) The effect of the conveyance must be determined by the intention of the parties to be gathered from the situation and surroundings of the parties, their conduct and the circumstances attending the transaction. The situation of the parties, the circumstances surrounding them, and their conduct and actions, conversations and agreements, at the time of making the quitclaim deed, and what Book said about it on divers occasions afterward to many different witnesses, were all before the trial court, and having the witnesses before him and seeing their general appearance and manner upon the stand, he was forced to the conclusion that the deed was intended as a security or mortgage at the time it was executed. Sayer v. Devore, 99 Mo. 437; Bartlett v. Brown, 121 Mo. 353; Kinzer v. Kinzer, 130 Mo. 131. (4) The action was ejectment for certain pieces of land. The defendant set up an equitable defense, and prayed for affirmative relief, and having stated that the plaintiff was in possession of certain lands conveyed by the deed as security for the payment of certain indebtedness, and that he had received rents and profits from the land, and prayed for an accounting, the case became an equitable one, triable by the court, and it was competent for the court to give all proper relief embraced within the pleadings and supported by the evidence in the case. Woodward v. Mastin, 106 Mo. 324; Reyburn v. Mitchell, 106 Mo. 365; Barnes v. McMullins, 78 Mo. 260; Muenks v. Bunch, 90 Mo. 500; Schuster v. Schuster, 93 Mo. 443; Allen v. Logan, 96 Mo. 591; O'Day v. Conn, 131 Mo. 321.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This suit was commenced as an action of ejectment for a dwelling house and a small tract of land of about one and one half acres near by Tarkio river and on the public road and being a part of lot 6, southeast quarter of section 32, township 61, range 39, in Holt county, Missouri. The answer was a general denial and equitable defense praying for an accounting and for affirmative relief. In short it admitted that said defendant was in possession of the said house, tract of land, and appurtenances, and alleged ownership and right of possession thereto, and also, as a further and equitable defense, "that the premises sued for were a part of a larger tract of land in same section, township, and range, formerly belonging to defendant; that defendant was greatly indebted, and that said indebtedness was secured by deeds of trust on said lands, and that said defendant only had an equity of redemption in all of said land and premises. That the plaintiff and numerous other persons had signed the defendant's said notes as additional security. That at the solicitation of plaintiff and for the security of plaintiff and the other sureties on said notes the plaintiff induced the said defendant to deed all of the said land to plaintiff, and turn same over to him, plaintiff, to control and to rent the land and buildings, until such time as the money could be borrowed, or could be had from the rents and proceeds thereof sufficient to pay off and discharge all of said debts, and release all said sureties, pay all taxes, etc., and himself a reasonable amount to compensate plaintiff for his trouble, and when said indebtedness and expenses were fully paid that plaintiff was to re-deed all of said premises to said defendant." In other words, that said deed, although absolute on its face, was understood, agreed, and intended between the parties, at the time, to be only a mortgage and not an actual sale and conveyance to the plaintiff. That the plaintiff agreed with the defendant that he should continue, with his family, to live in the house and upon the part of the land sued for until such time as the said mortgage debt should be paid and when so paid that said land should be reconveyed to him, the said defendant; that in pursuance of said agreement, defendant had continued to live in said house and occupy the premises sued for in this action at the commencement of this suit but had turned over all the balance of said tract to plaintiff. He asked for an accounting and reconveyance of the whole tract.

The reply was a general denial.

The court upon a hearing made its finding that the quitclaim deed made by defendant Beasly and wife to plaintiff Book on April 7, 1887, and recorded in deed record 46, page 517, in the recorder's office of Holt county, conveying the southeast quarter of the southeast quarter, and part of lot 5 (13.10 acres), and lot 6, of the southeast quarter of section 32, in township 61, range 39, for the consideration of $ 3,500, although unconditional and absolute on its face, was intended by the parties to be a mortgage only to secure to said Jacob Book $ 2,525, together with the interest thereon and the costs and expenses incurred in and about the management of said real estate and matters connected therewith; and the court so adjudged and decreed said deed in truth and in fact a mortgage to secure said sums last aforesaid mentioned. The court also proceeded to state an account upon the answer of defendant, and the issue joined thereon of the moneys advanced by plaintiff to defendant and for his benefit, and of the value of the improvements made by plaintiff on said lands, and on the other hand of the rents and profits by plaintiff received therefrom and upon such accounting found defendant Beasly was indebted to plaintiff in the sum of $ 3,553.12, which sum the court decreed to be a lien upon said real estate; and further adjudged and decreed that the equity of redemption of defendant in said lands be foreclosed, and that plaintiff recover of defendant said sum of $ 3,553.12; and that the same with interest be paid in sixty days from the entry of the decree, and if not, that said sum be levied of said real estate, and that the sheriff proceed to sell said lands to satisfy said judgment and lien; and ordered personal judgment over for any unpaid balance. It was further adjudged and decreed that if defendant paid sum within the time allowed by the decree, the defendant should be restored to the possession of all of said lands and have his writ of restitution, and that plaintiff recover his costs as taxed. From this decree, plaintiff, having made ineffectual motions for a new trial and in arrest of judgment, appealed to this court.

I. This appeal does not seem to involve a difference of opinion between the parties as to the principles of law and equity which should prevail in its determination. The controversy arises...