Fond v. McCreery

• Decision Date: 28 December 1934
• Docket Number: 6124
• Citation: 55 Idaho 144,39 P.2d 766
• Parties: CHARLES FOND and ELMA FOND, Appellants, v. H. W. MCCREERY and AGNES V. MCCREERY, Respondents
• Court: Idaho Supreme Court

39 P.2d 766

55 Idaho 144

CHARLES FOND and ELMA FOND, Appellants, v. H. W. MCCREERY and AGNES V. MCCREERY, Respondents

No. 6124

Supreme Court of Idaho

December 28, 1934

APPEAL AND ERROR-APPEALABLE ORDERS-JUDGMENT-COURT RULES-FAILURE TO SERVE BRIEF WITHIN TIME-MOTION TO DISMISS-PREJUDICE NOT SHOWN - MORTGAGES - DEED AND CONTRACT FOR RECONVEYANCE-ACTION TO DECLARE SAME MORTGAGE-PLEADING.

1. Appeal held not dismissible on ground that it was taken from order sustaining demurrer to complaint where document referred to in notice of appeal was a judgment and was so entitled, and no order sustaining demurrer other than that contained in judgment was to be found in record, and judgment appealed from was merely misnamed in notice of appeal.

2. Name by which instrument appealed from is called is not controlling as respects whether instrument is appealable.

3. Appeal held not dismissible on ground that brief was not served within forty days after filing of record on appeal where failure to file within specified time did not prejudice respondents (Supreme Court Rule 45).

4. Existing debt, owing from grantor to grantee in deed, is indispensable to instrument being construed as a mortgage (I C. A., secs. 44-804, 44-805).

5. Facts properly pleaded are admitted to be true on general demurrer.

6. Complaint seeking to have deed and contract for reconveyance decreed a mortgage, which alleged that grantees paid balance of purchase price to grantors' vendors and that deed was executed for purpose of securing repayment of such money and that grantees repossessed property when grantors were $ in default, held not demurrable (I. C. A., secs. 9-101, 9-104, 44-804, 44-805).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Everett E. Hunt, Presiding Judge.

Suit to have deed and contract for reconveyance decreed to constitute a mortgage. Judgment for defendants. Motion to dismiss appeal overruled and judgment reversed.

Judgment reversed, with instruction. Costs awarded to appellants.

Chas E. Horning, Walter H. Hanson and F. C. Keane, for Appellants.

Whether a transaction evidenced by a deed absolute on its face is a sale or a mortgage must be determined by the peculiar circumstances of each case; the form of conveyance is not conclusive, but the intention of the parties is the true and infallible test. (Clinton v. Utah Construction Co., 40 Idaho 659, 237 P. 427; Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90.)

James A. Wayne, for Respondents.

In determining whether a transfer absolute on its face was intended as a mortgage, the court will first look to the agreement itself. If such agreement is in writing and is unambiguous in its terms and conditions, parol evidence is inadmissible to vary the terms of such written instrument. And the test of whether the deed and/or agreement is an absolute conveyance or simply a mortgage is the existence or nonexistence of a debt. (Kurdy v. Rogers, 10 Idaho 416, 79 P. 195; Tapper v. Idaho Irr. Co., 36 Idaho 78, 210 P. 591; Winters v. Swift, 2 Idaho 61, 3 P 15; Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90.)

MORGAN, J. Budge, C. J., and Givens and Holden, JJ., concur. Wernette, J., did not sit with the court nor participate in the opinion.

OPINION

MORGAN, J.

It is recited in the judgment that it is

"ORDERED, ADJUDGED AND DECREED that the demurrer of the defendants to the amended complaint of the plaintiffs herein be, and the same hereby is, sustained upon the grounds that said amended complaint does not state facts sufficient to constitute a cause of action; that plaintiffs take nothing by their said action, and that the same be dismissed, and that defendants recover their costs and disbursements herein, taxed at the sum of $ 5.00"

The instrument is dated November 10, 1933, and is marked docketed and filed November 15, 1933.

It is stated in the notice of appeal: "plaintiffs hereby appeal to the Supreme Court of the State of Idaho from that certain order made by the above-entitled court under date of November 10th, 1933, and filed herein on the 15th day of November, 1933, and which said order sustained the defendants' demurrer to plaintiffs' amended complaint and which said order ordered and directed the dismissal of the above-entitled action. This appeal is taken from the whole of said order."

Respondents have moved to dismiss the appeal on the grounds: 1. That it has been taken from an order sustaining their demurrer to appellants' amended complaint, which is a non-appealable order; 2. That appellants' brief was not served within forty days after the filing of the record on appeal, as required by Rule 45 of this court.

The document referred to in the notice of appeal is a judgment, and is so entitled. No order sustaining the demurrer to the amended complaint, other than that contained in said judgment, is to be found in the record. The act of the court appealed from is misnamed in the notice of appeal, being therein called an order instead of a judgment, but the name by which the instrument is called is not controlling. (Miller v. Gooding Highway District, 54 Idaho 154, 30 P.2d 1074, and cases therein cited.)

Appellants' failure to serve and file their brief within the time specified in Rule 45 does not appear to have resulted to the disadvantage of respondents and the appeal will not be dismissed on that ground. (Harding v. Mutual Benefit Health & Accident Assn., ante, p. 131, 39 P.2d 306.)

In the amended complaint the following are alleged to be facts, and they are controlling in the decision of the case on the merits.

December 16, 1924, appellants, then husband and wife, entered into a contract with Emma B. Keys and D. E. Keys, her husband, for the purchase of a hotel, in Mullan, Shoshone County, together with personal property therein contained, for $ 43,000, $ 8,000 of which was paid at the time the contract was executed, and $ 35,000 was to be paid at the rate of $ 2,500 semi-annually. Upon the execution of the contract appellants went into possession of the property. In December, 1928, they were in default because of failure to make some of the payments due on the purchase price, and the vendors were threatening to dispossess them. Appellants informed respondents of this fact and entered into negotiations with them for a loan in an amount sufficient to pay the balance then owing. The negotiations culminated in an agreement between appellants and respondents and Mrs. Keys and her husband resulting in a conveyance by the latter of title to the property to appellants, by warranty deed. Appellants, in order to secure the repayment to respondents of the money advanced by them for the purpose of paying the balance of the purchase price due to Mrs. Keys and her husband, December 18, 1928, made, executed and delivered to respondent, H. W. McCreery, a warranty deed conveying the property to him, and respondents thereupon entered into a contract with appellants for the sale and reconveyance of the property by the former to the latter. Copies of the deeds and contracts are attached to the amended complaint and by reference made a part thereof.

Referring to the execution and delivery of the deed and contract between appellants and respondents it is alleged in the amended complaint that it was "clearly and thoroughly understood and agreed between the plaintiffs (appellants) and defendants (respondents) that said transaction as above set forth whereby said plaintiffs transferred the title to said property to the defendants, and the contract whereby the defendants agreed to sell said premises, and said personal property to the plaintiffs, was for the sole and only purpose of securing the repayment to the defendants and each of them of the sum of money advanced by the defendants to pay off the balance remaining on the Keys contract, and that said transactions were to constitute and be a mortgage to secure the repayment of said sums of money. . . .

"That all of said transactions had between the said plaintiffs and defendants were had for the sole and exclusive purpose and object of securing to the said defendants and were intended by all parties thereto as security for the repayment of any and all sums of money so advanced by the said defendants in the payment of the balance due the said Emma B. Keys and D E. Keys, and as security for the repayment of moneys advanced by defendants in the discharge of liens which had theretofore attached by reason of taxes levied by the State of Idaho or the Village of Mullan, or any special improvement taxes and/or assessments due the Village of Mullan and that said transaction was and is an equitable mortgage, and that the said defendants have through their wrongful and unlawful acts deprived these plaintiffs and each of them of any and/or all equity of...