Gray v. Fraser

• Decision Date: 11 March 1942
• Docket Number: 6976
• Citation: 123 P.2d 711,63 Idaho 552
• Parties: JOHN F. GRAY, Appellant, v. LULU BELLE FRASER, Administratrix of the Estates of Charles C. Fraser and Mima G. Fraser, deceased, Respondent
• Court: Idaho Supreme Court

123 P.2d 711

63 Idaho 552

JOHN F. GRAY, Appellant, v. LULU BELLE FRASER, Administratrix of the Estates of Charles C. Fraser and Mima G. Fraser, deceased, Respondent

No. 6976

Supreme Court of Idaho

March 11, 1942

MORTGAGES-DEED AS MORTGAGE-EVIDENCE-APPEAL-REVIEW OF FINDINGS.

1. The essential circumstances in determining whether a deed absolute upon its face is to be considered a mortgage are existence of debt to be secured, satisfaction or survival of the debt, previous negotiations of parties, inadequacy of price, financial condition of grantor, and intention of parties.

2. To establish a deed to be a mortgage, the evidence must be clear, satisfactory and convincing.

3. In action to have deeds declared mortgages, evidence including showing that grantors waited for 15 years until grantees died before bringing action, that grantor was indefinite as to payments made and amounts which allegedly were considerations for loans, the lack of any writing or corroborative testimony and that grantor never exclusively occupied land involved and did not make an unequivocal demand upon grantees for recognition of grantor's title during their lifetime sustained findings that deeds were not mortgages.

4. In action to have deeds declared mortgages, finding of trial court will not be disturbed unless it amounts to a substantial departure from the facts clearly established by evidence.

5. That testimony in behalf of plaintiff would, if it had been believed by trial court, demand a different finding will not lead to reversal of decree unless evidence so preponderates in favor of plaintiff's contention that appellate court can say the lower court was not justified in accepting contention of defendants as to the true facts of the situation.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Honorable T. Bailey Lee, Judge.

Action to have deeds declared mortgages. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

James R. Bothwell for appellant.

There is sufficient substantial evidence which is competent uncontradicted, and credible to sustain a judgment in favor of appellant. (Bergen v. Johnson, 21 Idaho 619, 123 P. 484; Largilliere v. Zavala, 39 Idaho 759, 230 P 774; Dickens v. Heston, 53 Idaho 91, 21 P.2d 905, 90 A. L. R. 944.)

A deed absolute on its face but given merely as security will in equity be considered a mortgage. (Bergen v. Johnson, 21 Idaho 619, 123 P. 484; Largilliere v. Zavala, 39 Idaho 759, 230 P. 774.)

Wayne A. Barclay for respondent.

The burden rests upon Appellant to establish that the deeds in question were not what they purport to be by making strict proof of that fact. (Morrison v. Pierce, 47 Idaho 430; Bergen v. Johnson, 21 Idaho 619; Investors' Mtg. Security Company, Ltd., v. Hamilton, 51 Idaho 113.)

Where the trial court has declared a deed, absolute on its face, to be a deed and not a mortgage, the court on appeal will not reverse the judgment unless the evidence is almost overwhelmingly the other way. (Clinton v. Utah Construction Company, 40 Idaho 659; Hagan v. Clyde, 60 Idaho 785; Hill v. Daugherty,--Idaho--115 P.2d 759.)

GIVENS, C. J. Budge, Morgan, Holden, and Ailshie, JJ., concur.

OPINION

GIVENS, C. J.

Charles C. Fraser and Mima G. Fraser, deceased, were husband and wife. Mrs. Fraser was appellant's sister. Mrs. Mima G. Fraser predeceased her husband August 6, 1937. Charles C. Fraser and respondent, Lulu Belle Fraser, were thereafter married October, 1939. Charles C. Fraser died May 8, 1940.

Appellant purchased Lot 1, Block 102, Jerome Townsite, April 20, 1918, for $ 400. Appellant mortgaged this property to the Jerome National Bank for a loan of $ 77.10, November 25, 1924, and deeded the property to his sister May 27, 1925. July 16, 1921, decedents conveyed acreage No. 223, in the City of Jerome, to appellant, he claiming the consideration therefore was wages due him from 1916 to 1918 for work done by him for them on their properties in Jerome County. Appellant conveyed this property by warranty deed to his sister July 23, 1921. Appellant contends the consideration for the transfer by him to his sister of the first piece of property was an advance by her of money to liquidate the mortgage given the Jerome National Bank, and that the consideration for the second deed was $ 100, which he had borrowed from her about the time of the deed and which he contends he paid back by having paid to his sister $ 25 a month received by him for employment in the Civilian Conservation Corps from July 16, 1933, to July 10, 1934. He brought this suit against respondent, administratrix of the Fraser estates, to have both deeds declared mortgages and that it be decreed that the second had been paid by such assignment of his salary in the Civilian Conservation Corps, and for an accounting. The trial court found the deeds conveyed absolute title and were not intended to be mortgages or to stand as security for the repayment of any loans, hence this appeal.

All of appellant's assignments of error are summed up in the eighth: "The judgment is not sustained by the evidence or findings of fact or conclusions of law and each are insufficient to sustain the judgment for the reasons hereinabove assigned." In support of his contention he quotes the following testimony, which we conclude is therefore what he deems most favorable to his position and inclusive:

"Q. What was the consideration for this deed?

"A. I didn't understand you Judge.

"Q. Well the deed which you gave to Mrs. Fraser, what were the circumstances under which that deed was given?

"A. Was that for the lot?

Judge Bothwell:

"Yes, that is for the Lot, Lot 1, Block 102, the one on which the Bank had the mortgage.

"A. I borrowed $ 75 from the Bank, I think it was $ 75. It came due, I didn't have the money to pay for it so I went and saw Gilbert White and I gave him a mortgage on that Lot to take care of the note. Then I wrote to my sister, Mrs. Fraser, and told her if she would take up that mortgage, I would deed the Lot to her until such time as I would be able to pay her back. She agreed to that and done it.

"Q. That is the purpose for which you deeded this lot to her?

"A. Yes.

"Q. Did she give you the money to pay off this mortgage?

"A. She paid it off herself."

* * * *

"Q. Now when did you say it was that you made the deal with Mrs. Mima Fraser to pay this mortgage to the Bank?

"A. Well it was after Gilbert talked to me about the Examiner being there and this note having to be taken care of. When I made this mortgage I wrote to Mrs. Fraser and told her what I had done and asked her if she would take care of that mortgage when it was due. She said she would.

"Q. Do you recall when the mortgage came due?

"A. It was six months after I signed, I don't remember when it was.

"Q. Now as a matter of fact, there isn't any date on that mortgage is there?

"A. I don't know.

"Q. And when you offered--withdraw that. When did Mrs. Fraser then pay this mortgage off to the Bank if you know?

"A. Well she paid the Bank when it was due, I don't know just when it was. I think it was the following Spring, probably May or June, something like that.

"Q. And at the time she paid it off, you gave her this deed?

"A. I did.

"Q. And she paid the note before or at the time you gave her the deed then?

"A. She paid the mortgage, yes."

* * * *

"Q. How did you learn that Mrs. Fraser paid this mortgage off to the Bank?

"A. She told me she did.

"Q. At the time she told you that she did, was that the time that you executed this deed to her?

"A. I believe so."

* * * *

"Q. Now Mr. Gray, what was the circumstances under which this deed was given by you to your sister Mima G. Fraser? * * *

"A. Well it was for $ 100 I borrowed from Mrs. Fraser.

"Q. And what was the--what was said about reconveying it to you if anything when the $ 100 was paid? * * *

"A. In the handing it back to me?

Judge BOTHWELL: Yes.

"A. Why she said I could have it back any time I paid back the $ 100."

* * * *

"Q. What date did Mrs. Fraser give you the $ 100 for which you gave her the deed to the acreage?

"A. I believe that was in about--I don't just remember what year it was in or what the date was. I believe it was around '21 I got that acreage.

"Q. Do you remember the month in 1921 that she gave you this money?

"A. March.

"Q. March in 1921, that's right?

"A. I believe it was in 1921 but I can't recall the month.

"Q. Now how did she pay this, in dollars to you?

"A. How did she pay it to me?

Mr. BARCLAY: "Yes.

"A. I don't think it was in March, I think Mrs. Fraser was East at the time; I think it was in July.

"Q. In other words your testimony is that Mrs. Fraser was not in Jerome at the time you received this $ 100?

"A. I don't believe she was.

Judge BOTHWELL:

"Now he didn't testify that he received it in March, he said he didn't know what month it was.

"Q. Do you recall whether or not you received this money in cash from Mrs. Fraser?

"A. No I didn't if I recall rightly, I wrote Mrs. Fraser for $ 100 and she borrowed this $ 100. Mr. Fraser wasn't at home at the time I don't think but she got this money from Mrs. Fred C. Clark. She sent me Mrs. Clark's check it was made out to Mrs. Fraser and she sent it on to me.

"Q. Mrs. Clark is another sister of yours?

"A. She is.

"Q. Where did you write Mrs. Fraser for this $ 100?

"A. In Pittsburgh I believe.

"Q. You don't remember the month you received it?

"A. I kind of think it was in July, I don't remember the dates very well."

* * * *

"Q. * * * Have you ever made a demand on anyone for a reconveyance of either of these parcels to you?

"A. Oh we talked it over different times but there was just the three of us, it...