Dignan v. Moore

• Decision Date: 23 February 1894
• Citation: 8 Wash. 312,36 P. 146
• Parties: DIGNAN v. MOORE ET AL.
• Court: Washington Supreme Court

36 P. 146

8 Wash. 312

DIGNAN v. MOORE ET AL.

Supreme Court of Washington

February 23, 1894

Appeal from superior court, King county; J. W. Langley, Judge.

Suit by James Dignan against William H. Moore and Ellen A. Moore to remove cloud from title. From a judgment for plaintiff defendants appeal. Affirmed.

Preston, Carr & Preston and W. R. Bell, for appellants.

Winsor, Bush & Morris, for respondent.

HOYT, J.

We deem it unnecessary to enter into a discussion of the questions of law presented in the briefs of counsel, for the reason that conceding the law to be as claimed by appellants, the facts shown by the record will not justify their contention founded thereon. The most that appellants claim is that a deed absolute on its face will be held to be a mortgage, when in fact it was so intended by the parties thereto, or when it was given as security for the payment of money. The undisputed proofs in this case show that the deed under which respondent claims was not given under circumstances which make either of these reasons for holding it to be a mortgage applicable. It appears from such proofs that the respondent absolutely declined to make a loan upon the property which was afterwards deeded to him. Such property was incumbered and the grantors in the deed were about to lose their right of redemption. Under these circumstances, after much importunity on the part of the appellants, the respondent agreed to purchase their equity of redemption. There is nothing whatever to show that he agreed to take it by way of security, or that it was understood between the parties that the money advanced by respondent was in the nature of a loan. It is true that it appeared by a separate writing that respondent agreed to reconvey the property to the appellants upon certain conditions, but there is nothing in the testimony to show that it was intended that the execution of this paper was to have any effect whatever in the construction of the deed. Instead thereof, directly the contrary is made to appear. If we should sustain the contention of the appellants, under the facts disclosed by this record, it would be, in effect, to hold that two persons standing upon an equal basis are incompetent to make a contract by which one of them shall sell to the other real estate, and make a deed thereto which shall be absolute as between the parties, and at the same time agree that the grantor in said deed shall have the...