Duell v. Leslie

• Citation: 106 S.W. 489,207 Mo. 658
• Parties: DUELL et al. v. LESLIE et al.
• Decision Date: 10 December 1907
• Court: United States State Supreme Court of Missouri

106 S.W. 489

207 Mo. 658

DUELL et al. v. LESLIE et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. APPEAL — SCOPE OF REVIEW — TRIAL ON AGREED STATEMENT OF FACTS.

An agreed statement of facts on which a cause is submitted stands in lieu of a special verdict, and must be treated as such on appeal.

2. MORTGAGES — ABSOLUTE DEED AS MORTGAGE —REDEMPTION BY GRANTOR.

A court of equity may declare a deed absolute on its face to be a mortgage and permit the grantor to redeem.

3. SAME — RELATION OF DEBTOR AND CREDITOR.

A deed absolute on its face will not be held a mortgage unless the relation of debtor and creditor exists between the grantor and grantee, and it was the intention of the parties to secure the payment of such debt.

4. SAME.

There can be no mortgage without a debt; and, leaving out of view agreements for the performance of obligations other than the payment of money, it is essential to constitute a mortgage that there be an agreement either express or implied on the part of the mortgagor to pay to the mortgagee a sum of money, either on account of a pre-existing debt or a present loan.

5. SAME—CONDITIONAL SALE.

Where the grantee, in an absolute conveyance, by an agreement executed at the same time reciting that the conveyance was made to pay a certain sum of money, and stipulates that he will not convey the premises within a specified time without the consent of the grantor, and that if the grantor within that time shall find a purchaser, the grantee will convey on receiving the amount with interest for which the land had been conveyed to him, the transaction is not a mortgage, but is a conditional sale, giving the grantee the right to recover the land after the expiration of the specified time.

6. SAME—ABSOLUTE DEED AS SECURITY.

The ultimate fact which converts an absolute deed into an equitable mortgage is that it is given merely as a security.

7. DEEDS—CONDITIONS—PERFORMANCE.

Where a grantor executes a warranty deed with the understanding that the grantee will extinguish the grantor's debt to a third person, the grantee, to perfect his title and give force to the conveyance, must pay the debt.

8. MORTGAGES — ABSOLUTE DEED AS MORTGAGE OR CONDITIONAL SALE.

Where a debt is extinguished by a conveyance, and the grantor has the privilege of refunding by a given time and thereby entitle himself to a reconveyance, the transaction is a conditional sale, but if the relation of debtor and creditor remains, and the debt subsists, it is a mortgage.

9. SAME.

A grantor conveyed real estate by deed absolute on its face after the premises had been sold by a trustee in a deed of trust. The grantor and grantee entered into a contract, which recited that the grantor was desirous to save what he could, that the grantee had agreed to redeem, and that if either of the parties had an opportunity to sell at not less than a fixed price within a specified time a sale should be made, and out of the proceeds should first be paid the amount expended in redeeming the premises, etc., and the surplus should be equally divided between the grantor and grantee. Held, that the transaction was not a mortgage.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by Joseph P. Duell and another against G. E. Leslie and another. From a judgment of dismissal, plaintiffs appeal. Affirmed.

This is a proceeding in equity, which was begun by the plaintiffs in the Scotland county circuit court on July 5, 1900, by which it is sought to have an accounting taken and ascertain the amount due on a certain mortgage of record, and authorizing the plaintiff to redeem the land embraced in the mortgage from an incumbrance by paying the balance due, and for the further relief of reforming a contract made between the parties, and that the warranty deed as executed by the plaintiffs be declared a mortgage, and for other general relief.

We deem it unnecessary to reproduce the pleadings in this cause; but it is sufficient to state that the main issue presented is as to whether or not the warranty deed as executed by the plaintiffs to N. V. Leslie and F. M. Cowell was in fact executed simply as a security for debt, and amounted to nothing more than an equitable mortgage. The cause was submitted to the trial court upon an agreed statement of facts, and such statement fully indicates the issues presented in the pleadings. Such agreed statement of facts was as follows: "For the purpose of a decision of the rights of the parties to the above-entitled cause upon all issues except the issue of the value of the rents and profits and the issue of the value of the improvements put upon the lands in question, the parties, plaintiffs and defendants, submit said cause upon the following agreed statement of facts: The value of the rents and profits and the improvements may be determined by further stipulation, or by evidence taken by the court, each party to the cause reserving the right to appeal from the decision that may be rendered in the cause. It is agreed that on December 22, 1892, plaintiff, Joseph P. Duell, was the owner of the north three-fourths (¾) of the east fourth (¼) of section sixteen (16) and the northeast fourth (¼) of the northwest quarter (¼) of section twenty-two (22), all in township sixty-four (64), range eleven (11) west, in Scotland county, Mo., and occupied the same with his family, and on said date borrowed of Eli Seeley $2,500, bearing 7 per cent. compound annual interest from date, to secure which he and his wife on said day executed their deed of trust upon all said lands to one William B. Seeley, trustee, the said Eli Seeley, being the beneficiary therein, which deed of trust was in the usual form and is recorded in Deed Record 21 at page 245 of the deed records of Scotland county, Mo.; that on the 4th day of March, 1896, no interest had been paid on said deed of trust and the principal with the accrued interest amounted to over $3,100, and that on said 4th day of March all the said land having been duly advertised was sold by said trustee, the 40 acres in section twenty-two (22) being bid off by Lackey at $1,100, and the land in suit being struck off to Eli Seeley, the beneficiary; that on the 6th day of March, 1896, Joseph P. Duell with N. V. Leslie and F. M. Cowell as his sureties executed to Eli Seeley their bond to redeem the 120 acres, which was tendered to said Seeley and by him refused, whereupon said N. V. Leslie paid Seeley the amount due on said trust deed remaining after the application of the net proceeds of the said $1,100, to wit, $2,152.85, and took up said note and deed of trust on about March 21, 1896; that on said 6th day of March, at the time of the execution of said bond to redeem, said Joseph P. Duell and his wife executed and delivered to N. V. Leslie and F. M. Cowell their general warranty deed in the usual form conveying the lands in question to said Leslie and Cowell for the expressed consideration of $2,500, which deed is of record in book 56 at page 332 of aforesaid deed records. And at the same time Joseph P. Duell, N. V. Leslie, and F. M. Cowell entered into the written contract set forth in plaintiffs' petition, a copy of which marked `Exhibit A' is hereto attached; that at the time said Leslie took up the note and deed of trust aforesaid about the 21st day of March, 1896, said F. M. Cowell conveyed his interest in the lands in question to N. V. Leslie by quitclaim deed of record in book 48 at page 442 and being in the usual form; that neither Joseph P. Duell, nor said Leslie or Cowell, found a sale for said land before March 1, 1897, and that the said Joseph P. Duell occupied said farm from March 6, 1896, until the 27th day of April, 1897, and he then with his family moved away and delivered possession of said farm to said N. V. Leslie; that said N. V. Leslie paid back taxes on said farm to the amount of $87.62 and that in 1900 said N. V. Leslie conveyed the lands in question together with other lands to his son, G. E. Leslie, by a general warranty deed in the usual form for the expressed consideration of $1, the lands so deeded being a gift, which deed is of record in book 67 at page 305; that said N. V. Leslie and G. E. Leslie have been in the possession of said lands ever since said Joseph P. Duell moved away from same and have received the rents and profits, paid taxes thereon and made improvements; that said G. E. Leslie is the sole heir to N. V. Leslie and the administrator of the estate of said N. V. Leslie, now deceased, and that final settlement of said estate has been made; and that said N. V. Leslie and G. E. Leslie during all the time mentioned were solvent. All the instruments referred to in this stipulation shall be considered in evidence. 10th August, 1905. J. P. Duell et al., by His Attorneys, Smoot, Boyd & Smoot. N. V. Leslie et al., by Mudd & Pettingill and J. M. Jayne, Their Attorneys."

Attached to said stipulation and referred to therein as Exhibit A and read in evidence as follows: "Exhibit A. Memphis, Mo., March 6, 1896. This agreement made and entered into by and between J. P. Duell, of Scotland county, Mo., party of the first part, and N. V. Leslie and F. M. Cowell, of Memphis, Mo., Scotland county, parties of the second part, witnesseth: That whereas J. P. Duell has had his land sold at trustee's sale, to wit, the north three-fourths (N. ¾) of east fourth (E. ¼), section sixteen (sec. 16), township sixty-four (twp. 64) north, range eleven (N. R. 11), west fifth (W. 5th) principal meridian (P. M.) in Scotland county, Mo., on the 4th day of March, 1896, and whereas he is desirous to save what he can out of the same, and whereas he is desirous to give bond to redeem said land as provided by law, and whereas said Leslie and Cowell have signed his bond to redeem given said Eli Seeley, and whereas said Duell has deeded said land to said Leslie and Cowell, they are to furnish the necessary money to redeem said land within...