Borrow v. Borrow

• Decision Date: 14 April 1904
• Citation: Borrow v. Borrow, 34 Wash. 684, 76 P. 305 (Wash. 1904)
• Parties: BORROW v. BORROW et ux.
• Court: Washington Supreme Court

76 P. 305

34 Wash. 684

BORROW v. BORROW et ux.

Supreme Court of Washington

April 14, 1904

Appeal from Superior Court, Kittitas County; Frank H. Rudkin, Judge.

Action by Matilda Borrow against Fred Borrow and wife.From a judgment in favor of defendants, plaintiff appeals.Affirmed.

Mires & Warner and Graves & Englehart, for appellant.

Pruyn &amp Slemmons, for respondents.

HADLEY J.

Respondents are husband and wife, and appellant is their daughter.Appellant brought this suit against respondents, and alleged that she is the owner of the north half of lot 1, block 22 in the original town of Ellensburg; that the respondents were the tenants in possession under appellant's grantor at the time the appellant purchased the property, and have since continued in occupancy thereof as appellant's tenants that appellant has a brick building upon a portion of said lot, and respondents have commenced the construction of a wooden building upon the lot, connecting with said brick building, and made other changes in appellant's building and are continuing and threatening to continue to complete the construction of said wooden building, and to make other changes in the brick building, against the protest of appellant.It is alleged that respondents are insolvent, and that damages are not recoverable, for which reason a restraining order is prayed to prevent respondents from doing further building or making further changes upon the premises.The respondents answered that during the month of June, 1902, they were desirous of purchasing the premises described in the complaint, and obtained from the agent of the owner the price and terms upon which they could be bought, the same being $1,800 cash, or $1,850 part cash and part on time; that respondents agreed to buy the property, and the agent agreed to sell the same to them, and also agreed that respondents could have a short time to determine whether they would pay cash in full, or purchase on the deferred-payment plan; that on or about July 6, 1902, the appellant, having ready money, and knowing of the desire and intention of respondents to purchase said premises, and knowing of their agreement to purchase the same as aforesaid, did, at the request of respondents, agree with them to purchase the premises for respondents at the cash price of $1,800, to take the deed therefor in her own name, and give the respondents two years' time in which to pay her the $1,800 purchase price, together with $15 per month as compensation for the use of the money, and that she would then convey the premises to them; that, in pursuance of said agreement, appellant paid said purchase price, and received a deed for the premises, in which she is named as grantee; that, upon the faith of said agreement with appellant, respondents went into possession of the premises, and have since occupied and retained possession thereof, making valuable improvements thereon; that they have paid appellant the sum of $60 as compensation for the use of said $1,800.The answer contains many other allegations but the above, we believe, sufficiently state the issue.A trial was had before the court without a jury.The court name findings of facts and entered conclusions of law to the effect that the deed conveying the premises to appellant was intended as a mortgage, and is a mortgage, to secure the sum of $1,800 loaned by her to respondents, with interest thereon; that appellant holds the legal title in trust for respondents; and that the latter are entitled to a judgment dismissing the action.Judgment was entered accordingly, and this appeal was taken.

Errors are assigned upon the court's findings of facts.We have read and considered the evidence.There is a decided conflict in the testimony upon material points.The trial court, however, found the weight thereof to be with respondents.We do not think the record will justify us in finding otherwise, especially in view of the fact that the trial court saw and heard the witnesses testify, and was therefore better able to determine the relative value of conflicting testimony.The facts found by the court are substantially the same as alleged by the respondents in their answer, and as heretofore stated.

It is next assigned that the court erred in its conclusions of law.The proofs showed that the agreement between appellant and respondents, requiring the conveyance to appellant as security for the loan of the $1,800, was not in writing.It is therefore urged that the transaction was within the statute of frauds, and that no acts of the parties have taken it without the statute.It is further contended that the transaction was within the statute declaring a contract void when not in writing, and when by its terms it is not to be performed within one year from the time it is made.It is a well-established rule that parol evidence is admissible to show that an instrument, though in form a deed, is in fact a mortgage.It is also the rule, when by verbal agreement the purchase money for real estate is paid by one person, and the conveyance is made to another, that a resulting trust arises against the person to whom the land is conveyed, in favor of the one by whom the purchase money is paid.The same rule applies when the money is merely advanced as a loan by the party taking the title.'The same rule prevails if the money paid by the party taking the title is advanced by him as a loan to the other, and the conveyance is made to the lender for the purpose of securing the loan.But in the latter case the purchaser cannot demand the conveyance until he has paid the money advanced, and for which the land is held as security.In such a case the grantee holds a double relation to the real purchaser.He is his trustee of the legal title to the land, and his mortgagee for the money advanced for its purchase, and, as in the case of any other mortgage which is evidenced by an absolute deed, is entitled to retain the title until the payment of the claim for which it is held as security; and he may also enforce his lien by an action of forclosure.The...