Gassert v. Bogk

• Decision Date: 15 September 1888
• Citation: 7 Mont. 585
• Parties: GASSERT et al. v. BOGK.
• Court: Montana Supreme Court

7 Mont. 585

GASSERT et al.

v.BOGK.

Supreme Court of the Territory of Montana.

September 15, 1888.

Appeal from district court, Silver Bow county; before Justice GALBRAITH.

J. T. Baldwin and Wade, Toole & Wallace, for appellant.

Stephen De Wolfe and William H. De Witt, for respondents.

BACH, J.

This action was commenced on the 28th day of May, 1886, in the justice's court, Silver Bow county, under the law generally known as the summary proceeding by a landlord against his tenant holding over contrary to the terms of his lease. The defendant filed an answer, setting forth a claim of title, whereupon the cause was certified to the district court of Silver Bow county, in which court the cause was tried, and trial resulted in a verdict and judgment for the plaintiff. The appeal is from the judgment. The judgment roll is comprised of the pleadings and a statement on appeal which contains exceptions.

The first exception which we will consider is that which was taken by defendant to the refusal of the court to grant a nonsuit at the close of plaintiff's case. It must be remembered that we are not considering a motion for a new trial, and that, as to the question of nonsuit, we must confine ourselves to the testimony then before the court. At the trial of the cause the plaintiff introduced in evidence a deed dated May 19, 1885, by which deed the defendant, for and in consideration of the sum of $7,500 herein granted to the plaintiff Steele, his heirs and assigns forever, an undivided one–half interest in and to the premises mentioned in the complaint; also a deed of the same date, from the same defendant, granting the plaintiffs Reding and Gassert, their heirs and assigns forever, an undivided one–half interest in and to the same property, for a similar consideration; also an agreement, bearing same date, by terms of which Steele, Reding, and Gassert agreed as follows:

“Memorandum of agreement entered in at Butte City, Mont. Terr., on the 19th day of May, 1885, between Harry Gassert and Jacob Reding, parties of the first part, James H. Steele, party of the second part, and Gustavus Bogk, party of the third part, all of Silver Bow county, Mont. Terr., witnesseth: Whereas, the said Gustavus Bogk, and Margaretha Bogk, his wife, have this day sold and by deed conveyed to said first and second parties, in consideration of $7,500.00 respectively paid by said first and second parties, an undivided one–half interest each in and to the north twenty–one feet, three inches, of lot number five, (5,) in block No. 29, in the city of Butte, according to the official plat and survey of said city, and a like undivided one–half interest each in and to the following mining lode claims, situated and lying in Summit valley district, Silver Bow county, Mont. Terr., to–wit: The Berlin, Margaretha, Gustavus, Eva, and Leaf lode claims, reference being made to the deed for a fuller description of said property; and whereas, the said Gustavus Bogk is desirous of having the right to repurchase said property within one year from the date of this agreement: Now, in consideration of all premises, and of one dollar by him paid to said first and second parties, the receipt of which said last–named parties do severally hereby acknowledge, said first and second parties do hereby covenant and agree to resell and reconvey to said third party the undivided one–half interest in and to the above–described property severally sold and conveyed to said parties by the said Gustavus Bogk and wife, provided said third party shall, on or before the 19th day of May, 1886, pay, or cause to be paid, to said first party the sum of $8,967.50, and shall pay, or cause to be paid, to the said second parties a like sum of $8,967.50 on or before the said last–named date. In witness whereof said first parties, by their attorney in fact, Henry Jacobs, and said second party in person, do hereunto set their hands and seals on the day and year herein first above written.

[Signed] “HARRY GASSERT. [Seal.]

“BY HENRY JACOBS, his attorney in fact.

[Signed] “JACOB REDING. [Seal.]

“By HENRY JACOBS, his attorney in fact.

[Signed] “JAMES H. STEELE. [Seal.]” Duly verified and recorded in Silver Bow county, Mont.

It will be observed that no loan is referred to in either of said deeds, or in said contract to reconvey; that said contract contains no promise on the part of Bogk to pay the sum mentioned, and is not executed by him; and that said contract refers directly to a sale. Plaintiff then introduced in evidence a lease of said premises, dated May 21, 1885, executed by plaintiffs herein to said defendant for the term of one year, at the annual rent of $450. The lease is signed by Bogk, and he therein covenants to surrender the premises upon the expiration of the term. In addition to this plaintiff introduced evidence to show reasonable value of the rents and profits, and to show, also, that the defendant was holding over against the consent of his landlords. That is all the testimony introduced prior to the motion for a nonsuit. The absence of testimony sometimes is a material fact. Many of the cases cited by counsel for appellant are determined upon the facts not before the court below at the time of the motion for a nonsuit; but as those facts are material in drawing the distinction to be made between the different cases cited upon the argument, we will note them at this time. It will be observed, then, that up to this point in the case no evidence was given tending to show a previous loan, or any application for a loan; that there is no evidence tending to show what was the value of the premises in question; that there is no evidence to contradict the presumption that the lease was executed two days after the deeds as its date imports. The motion for a nonsuit was made upon the following grounds: “Now comes the defendant in the above–entitled action, and moves the court that the plaintiffs be nonsuited in this action, for the reason that the evidence introduced by them in this action fails to prove their cause of action in this: They failed to prove that they were ever, or at any time, in possession, or entitled to the possession, of the premises described in the complaint, and that defendant ever entered in possession under and by virtue of said lease, or referable thereto, and that the defendant totally failed to prove a demand to have been made for the possession of said premises by them or any one upon the defendant, and that the plaintiffs ever, or at any time, served or gave notice to quit or deliver the possession of same to the defendant, or cause it to be done at any time, or at all. [Signed] JOHN T. BALDWIN, Attorney for Defendant.”

The complaint alleges that more than three days prior to the commencement of the action a demand in writing was made upon the defendant to deliver up the possession of the property, and further alleges the refusal of the defendant so to do. The answer contains no denial of these allegations. It was therefore unnecessary for plaintiff to prove a demand. The remaining ground upon which the motion for nonsuit was based is the main point in this case. Do the deeds, contract to reconvey, and the lease, when considered together, constitute a mortgage? If they do, then plaintiffs have failed to show a tenancy. If they do not, then the tenancy was proven. In considering this question particular attention must be given, not only to the facts proved, but also to the absence of any evidence as to certain other facts to which reference has already been made. We will consider the case, first, in regard to the authorities cited, and then upon the principles which we think should control cases of this character. The cases cited by appellants may be divided into three classes, and it will be seen that the third class alone is authority for their view of this case. The first class includes those cases in which the papers (deed and bond) upon their face recite that the transaction is one for the security of a loan. This class includes the following cases cited by appellant: Erskine v. Townsend, 2 Mass. 493;Batty v. Snook, 5 Mich. 231;Enos v. Sutherland, 11 Mich. 539;Perkins v. Dibble, 10 Ohio, 433;Dey v. Dunham, 2 Johns. Ch. 182;Bank v. Upmann, 12 Wis. 555. The second class includes those cases where evidence aliunde shows that a mortgage, and not a sale, was intended, including cases where the evidence shows such facts as a previous loan, an application for a loan, great difference in value, application on the part of grantee to have the debt, or portion thereof, repaid. Under this class may be placed the following cases cited by appellant: Walker v. Mining Co., 2 Colo. 94, in which there was a note. Trucks v. Lindsey, 18 Iowa, 505, in which the court say that sale of land with contract to reconvey will be upheld where a sale, and not a mortgage, is intended. Scott v. Mewhirter, 49 Iowa, 487;Preschbaker v. Feaman, 32 Ill. 475;Ewart v. Walling, 42 Ill. 453;Clark v. Finlon, 90 Ill. 246;Crassen v. Swoveland, 22 Ind. 427;Sharkey v. Sharkey, 47 Mo. 543;Ferris v. Wilcox, 51 Mich. 105, 16 N. W. Rep. 252;Marshall v. Stewart, 17 Ohio, 356;Stephens v. Sherrod, 6 Tex. 294;Ruffier v. Womack, 30 Tex. 341;Plato v. Roe, 14 Wis. 490;Brinkman v. Jones, 44 Wis. 514;Robinson v. Willoughby, 65 N. C. 520;Overton v. Bigelow, 3 Yerg. 513.

It will appear, by cases hereinafter cited, that the courts of last resort in Texas and Michigan, Illinois, Wisconsin, Indiana, and Tennessee have held that a deed with a contemporaneous contract to reconvey is not per se a mortgage. The third class of cases is that in which the courts hold that a deed and contract to reconvey are per se mortgages. This class includes the cases from Vermont, Maine, Massachusetts, Pennsylvania. Looking at this case upon well–established principles, and confining ourselves strictly to the evidence before the court when the motion for a nonsuit was denied, we are forced to the conclusion that the...