Holien v. Slee
| Decision Date | 10 January 1913 |
| Docket Number | 17,964 - (134) |
| Citation | 139 N.W. 493,120 Minn. 261 |
| Parties | OLINE HOLIEN and Others v. ARCHIE M. SLEE |
| Court | Minnesota Supreme Court |
Action in the district court for Goodhue county for an account of the amount due defendant upon certain loans made by him to plaintiff's husband, and to compel defendant to reconvey the interest of plaintiff in the lands conveyed to defendant to secure payment of the loans, or for a partition, or if that could not be made for a sale of plaintiff's share and the balance due her after payment of the expenses. Plaintiff's children were made parties plaintiff by order of court. Defendant Slee's answer expressly denied that the deeds mentioned in the complaint as executed by plaintiff and her husband were executed or given as security for debt. The case was tried before Johnson, J., who made findings, as stated on page 263, infra, and ordered judgment in favor of plaintiff Oline Holien in the sum of $622.89, and in favor of each of the other plaintiffs in the sum of $311.46. From an order denying a new trial, defendant Slee appealed. Affirmed.
Deed as mortgage -- evidence.
In an action by the widow and heirs of a grantor against the grantee to have certain deeds declared to be mortgages, an instrument executed by the defendant after the death of the grantor, whereby he agreed to sell a portion of the property involved to one of the heirs, and to accept, as a credit upon the stipulated consideration, the widow's quitclaim deed to another portion of such property, was admissible as evidence tending to show conduct on the part of the defendant inconsistent with his claim of absolute ownership.
Deed as mortgage -- circumstantial evidence.
The fact that a deed absolute in form is really a mortgage may be established by circumstantial evidence, especially where the grantor is dead.
Findings sustained by evidence.
Evidence in an action by the heirs of a grantor to have certain deeds declared to be mortgages, and for other relief, considered and held sufficient to sustain the findings of the trial court in favor of the plaintiffs.
William W. Pye, for appellant.
A. J Rockne, for respondents.
Action seeking to have certain deeds executed by the plaintiff, Oline Holien, and her deceased husband, Andrew A. Holien, adjudged to be mortgages, and for other relief permissible only on the theory that such deeds were mortgages. There is practically no dispute concerning the main facts, which, stated chronologically, are as follows:
On December 7, 1891, Andrew O. Holien, the husband of the plaintiff Oline, was the owner in fee and in possession of lots 9 and 10, of block 4, in Dennison, and on that date, being indebted to the defendant in the sum of $330, they executed a mortgage on such lots to him for the amount of his debt. Default having subsequently occurred, the defendant foreclosed the mortgage, and on May 4, 1901, the lots were sold at mortgage sale to the defendant for $510.40, being the amount due on the mortgage, together with the expenses of foreclosure. On October 14, 1901, Andrew O. Holien was the owner of an undivided one-third interest in 172 acres of farm lands in Goodhue county, the same being in two tracts, one in sections 33 and 34, in Warsaw township, and containing 160 acres, and the other being in section 26, Holden township, and Holien's interest being subject to a life estate in the lands held by his mother. On the day last mentioned he was indebted to the defendant in the sum of $500, and by deed of quitclaim conveyed to the defendant his interest in such farm lands, in consideration, as the defendant claims, of the debt; the lands, however, being worth at that time $60 an acre, inclusive of the life tenant's interest, her age then being 73 or 74 years. This deed was recorded shortly after its execution. Holien thereafter became further indebted to the defendant in the sum of $350, and by deed of quitclaim, dated October 17, 1901, conveyed to him the above-mentioned lots 9 and 10, which were then of the value of $900. This deed was recorded on December 5, 1901. On February 28, 1902, Holien executed to the defendant a quitclaim deed for the stated consideration of one dollar, conveying to him the premises in sections 33 and 34; this deed being made to correct the description in the deed of date October 14, 1901. Oline Holien, the said Andrew's wife, joined in all the above-mentioned conveyances executed by him. On February 28, 1902, Holien and the defendant executed an agreement in writing, wherein the defendant agreed to convey to Holien lots 9 and 10 and the lands in sections 33 and 34, upon the payment of $1,230, payable $30 at the time of the execution of the contract -- which was then paid -- and $1,200 on October 18, 1906, with interest at the rate of 8 per cent., payable annually, no part of which, either principal or interest, has been paid. On February 27, 1906, the defendant served upon Holien written notice of the cancelation of the contract to convey, if the agreed payments were not made within 30 days from the date of the notice. Holien failed to pay any sum after the service of such notice. On or about April 1, 1906, the defendant took possession of the lots, and has since received the rents and profits thereof. The life tenant of the farm lands died in December, 1909, and the defendant then took possession thereof, and since that date, and until April 1, 1911, received the rents and profits therefrom, also, and on the last-mentioned date he conveyed the lands in sections 33 and 34 to innocent purchasers for the sum of $3,161.73. Holien died February 21, 1907, intestate, and the plaintiffs are his widow, children, and only heirs.
The action was tried to the court without a jury. The court made findings, among other things, in accordance with the facts stated, and in addition thereto, that the several deeds mentioned were mortgages in fact, that the contract of date February 28, 1902, constituted a defeasance, the consideration recited therein being the amount then due the defendant from Holien; and as conclusions of law found that the plaintiffs, being Holien's widow and children, were the owners of lots 9 and 10, and should recover from the defendant the value of their several interests in sections 33 and 34, after deducting the amount due on the mortgage. Thereafter the defendant moved for a new trial, and from an order denying the motion appealed to this court.
1. The assignments of error, save one, are all based upon the proposition that the court erred in finding that the deeds were in fact mortgages. The other assignment, which, for convenience, we will consider first, relates to the admission in evidence of an instrument designated as "Exhibit B," over the defendant's objection and exception. It appeared that on August 29, 1911, the defendant and Joseph A Holien, one of the plaintiffs, entered into a written agreement of that date, in which the defendant contracted to convey to Joseph, by warranty deed, a portion of lot 10, upon the payment by Joseph of $1,370. This...
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