Carter v. Simpson Estate Co.

• Decision Date: 17 January 1922
• Citation: 103 Or. 383,203 P. 580
• Parties: CARTER v. SIMPSON ESTATE CO. ET AL.
• Court: Oregon Supreme Court

203 P. 580

103 Or. 383

CARTER v. SIMPSON ESTATE CO. ET AL.

Supreme Court of Oregon

January 17, 1922

Department 1.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by Cecil C. Carter against the Simpson Estate Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

See also, 193 P. 913.

A. G. Thompson, of Myrtle Point (George P. Topping of Bondon, on the brief), for appellant.

Stanley Pedder, of San Francisco, Cal., and A. H. Derbyshire, of North Bend (A. S. Hammond, of Myrtle Point, on the brief) for respondents.

BURNETT C.J.

According to the admitted allegations of the pleadings, the plaintiff being indebted to the assignor of the Simpson Estate Company in the sum of $29,695, joined with his wife in a mortgage on certain lands in Coos county to secure a note for that amount. Afterwards, having become the owner of the note and mortgage, the defendant Simpson Estate Company began a suit to foreclose that mortgage. There seem to have been negotiations for a settlement of the suit, with the result that on June 24, 1918, the plaintiff and his wife joined in a deed, absolute on its face, by which they conveyed all of the lands in fee to the Simpson Estate Company. Thus far the parties agree. From thenceforward there is an effort on the part of the plaintiff to show by parol that this deed, although absolute on its face, was a mortgage given to secure the indebtedness already mentioned. Further, it is said that the time for repayment of the debt was extended to December 31, 1919, and that afterwards the defendant Simpson Estate Company extended the time until February 1, 1920, but that, notwithstanding the agreement, the defendant company conveyed the property to the defendant Bones, who took with notice of all the plaintiff's right to pay the debt and redeem the property. The allegations of the complaint covering the extension of time and the right to redeem are denied by the answers. The contention of the defendants is that the plaintiff and his wife conveyed the property, as stated, in satisfaction of the debt, in consideration of which the defendant company released and discharged the indebtedness.

There appears in evidence the deed from the plaintiff and his wife to the Simpson Estate Company, conveying the property to the latter, as stated, containing the covenant of the present plaintiff to warrant and defend the property against all incumbrances, except unpaid taxes and the mortgage for $29,695, dated May 27, 1915. At the same time, as part of the same transaction, the defendant Simpson Estate Company executed and delivered to the plaintiff an option in writing giving to the plaintiff the sole right and choice to buy the real property involved upon the payment by the plaintiff to the Simpson Estate Company on or prior to December 31, 1919, the sum of $33,500. It is stated in the option that one of the considerations for the granting of the same is the execution of a lease of the premises from the Simpson Estate Company to Carter and a payment of the rent reserved therein. A copy of the lease also appears in the record, and finally this document, executed at the same time, is admitted by the plaintiff to have been signed by himself and his wife:

"Know all men by these presents that we, Cecil C. Carter and Alta E. Carter, of Coos county, state of Oregon, for and in consideration of the sum of one dollar, lawful money of the United States of America, to us in hand paid by Simpson Estate Company, a corporation, organized and existing under and by virtue of the laws of the state of California, have remised, released and forever discharged, and by these presents do, for ourselves, our heirs, executors and administrators, release and forever discharge, the said Simpson Estate Company and also Simpson Lumber Company, a corporation organized under the laws of the state of California, and each of them, from all claims and demands of every kind, nature, and character, which against the said Simpson Estate Company or the said Simpson Lumber Company, or either of them, we or either of us ever had or now have for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of these presents."

In its tenderness for debtors, equity has gone to great lengths and has firmly established the doctrine that a deed absolute on its face may be shown by parol to be really and truly a mortgage to secure the payment of a debt from the grantor to the grantee; in other words, for that purpose it is competent to...