Buse v. Page
| Decision Date | 22 May 1884 |
| Parties | Ernest Buse v. Henry G. Page and others |
| Court | Minnesota Supreme Court |
On Re-argument, June 20, 1884. Reargument Denied 32 Minn. 111 at 117.
Plaintiff brought this action in April, 1883, in the district court for Otter Tail county, against Henry G. Page, Henry Opperman John W. Corliss and others, (claiming under defendant Page,) praying (among other things) that an assignment of a sheriff's certificate of mortgage sale by Opperman to Corliss, bearing date March 13, 1875, be declared a mortgage and for leave to redeem; and that a judgment in a suit brought by defendant Page against Opperman and others be declared void as to Opperman and this plaintiff.
The action was tried by Collins, J., who found, among other facts, (not here material,) the following: On February 3 1873, plaintiff, being owner of certain land in Otter Tail county, described in the complaint, mortgaged it to one Grussendorf, who, on January 26, 1874, assigned to one Martin. On March 14, 1874, the mortgage was duly foreclosed by advertisement, and the land sold for $ 1,055.25 to Martin who received and recorded the proper certificate of sale. No redemption from this sale was ever made. On January 30, 1875, Martin, in consideration of payment of the amount due thereon, assigned the certificate to Opperman, who, on March 13, 1875, in consideration of the payment of $ 675, assigned to defendant Corliss. The two assignments were recorded on March 13, 1875, on which day Corliss agreed with Opperman to sell and convey the land to him by warranty deed, provided he should pay to Corliss, on or before November 14, 1875, the sum of $ 740, and also all taxes and assessments against the land due at the time of making such deed; and in case of failure of Opperman to buy and pay for the land at the time mentioned, then Corliss should be discharged from any obligation on the contract or any interest of Opperman in the land. This agreement was duly recorded on the same day. When this agreement was made, the land was worth $ 1,000, and no more. There was no agreement between the parties to this instrument that the transaction should be in fact a mortgage, or that the land should be held in trust or otherwise as security for the payment of any sum of money, nor did the plaintiff or Opperman ever agree to pay any money whatever in redemption of the certificate, or for a conveyance of the land. No part of the $ 740 named in the agreement was ever paid.
After the year of redemption from the mortgage sale had expired, and on February 25, 1880, Corliss, being in actual possession, conveyed the land in fee by warranty deed to defendant Page, whose deed was recorded the next day, and who bought and paid valuable consideration for the land, in good faith, and with no knowledge of the nature of the transaction between Opperman and Corliss except as he might have been informed by inspection of the records.
On May 18, 1874, the plaintiff conveyed the land in fee, by warranty deed duly recorded, to one Fred. Buse, who, on April 14, 1883, quitclaimed to plaintiff all his right, title, and interest in the land. On March 22, 1882, Opperman quitclaimed to plaintiff all his right, title, and interest in the land.
On August 1, 1880, the defendant Page brought suit in the district court for Otter Tail county against Opperman and others, for the cancellation of the agreement of March 13, 1875, between Corliss and Opperman, as a cloud upon his title, and for a judgment declaring him the owner of the land and barring the defendants from claiming any interest therein, and on March 15, 1881, he obtained such judgment, none of the defendants having appeared. Opperman being a non-resident, no service upon him was made except by publication. When the present action was brought, there was on file in the former suit no other affidavit for publication of the summons than a paper in form a sufficient affidavit for that purpose, signed by the plaintiff's attorney therein, and with a jurat complete and sufficient, but not signed or sealed. Shortly after this action was brought, the defendant Page moved in the former action (in which he was plaintiff) for an amendment of the affidavit by adding the signature and seal of the deputy clerk of the court before whom it had been sworn on the day named in the unsigned jurat. The motion was made and granted ex parte, on the affidavits of the attorney who signed the affidavit for publication, and of the deputy clerk before whom it had been in fact sworn.
Upon these findings judgment was ordered and entered for defendants, and the plaintiff appealed.
Judgment affirmed.
Canty & Johnson, for appellant.
John W. Mason, E. E. Corliss, and W. D. Parkinson, for respondents.
Where A conveys land to B by absolute deed, and B at the same time executes to A a bond or agreement conditioned to reconvey the land to A upon payment of a certain sum of money at a time specified, the transaction between the parties, upon this simple state of facts, purports to be, and prima facie is, what is called a conditional sale and not a mortgage. Except in Pennsylvania, where a somewhat peculiar doctrine appears to prevail, an examination of the adjudged cases will generally show that where a deed absolute and a simultaneous bond or agreement for reconveyance have been held to constitute a mortgage, other facts have appeared in addition to the simple facts of a deed and bond or agreement. Henley v. Hotaling, 41 Cal 22; Haynie v. Robertson, 58 Ala. 37; 1 Jones on Mortgages, § 260 et seq. A mortgage is a security for something to be paid or performed; hence, facts showing that a deed upon its face absolute is really intended as a security, show it to be a mortgage. Instances of this are where it appears that there is a loan of money by the grantee to the grantor, whether evidenced by the grantor's notes or by other express obligation, or even without any personal obligation of payment on the part of the grantor; and the purpose of the transaction embodied in the deed and bond or agreement for reconveyance is the repayment of a sum loaned, with or without interest. Belote v. Morrison, 8 Minn. 62, (87;) Hill v. Edwards, 11 Minn. 5, (22;) Holton v. Meighen, 15 Minn. 50, (69;) Fisk v. Stewart, 24 Minn. 97; Benton v....
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