Meighen v. King
| Decision Date | 25 September 1883 |
| Citation | 16 N.W. 702,31 Minn. 115 |
| Parties | William Meighen v. Almon King |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Fillmore county, Farmer, J., presiding, refusing a new trial, the action having been tried by a referee and judgment having been ordered for defendant. The facts are stated in the opinion. The subject-matter of this action has been before this court before, in the cases of Holton v Meighen, 15 Minn. 50, (69,) and King v Meighen, 20 Minn. 237, (264.)
Order affirmed.
N. P Colburn and H. S. Bassett, for appellant.
The statute of limitations has barred defendant's defence. If the warranty deed under which plaintiff claims and which is absolute in form could ever have been shown to have been intended as a mortgage, it is now too late to do this. Weide v. Gehl, 21 Minn. 449; Fisk v Stewart, 24 Minn. 97; 26 Minn. 365; Collins v. Doe, 33 Ala. 91; Espinosa v. Gregory, 40 Cal. 58; Hughes v. Davis, 40 Cal. 117; Pico v. Gallardo, 52 Cal. 206; Lackey v. Bostwick, 54 Ga. 45; Biggers v. Bird, 55 Ga. 650; Green v. Turner, 38 Iowa 112; Crawford v. Taylor, 42 Iowa 260; Burdick v. Wentworth, 42 Iowa 440; Wetherbee v. Green, 22 Mich. 311; Jeffery v. Hursh, 42 Mich. 563; Sutton v. Mason, 38 Mo. 120; Sedgwick & Wait on Trial of Title to Land, §§ 338, 340. After a great lapse of time a deed absolute cannot be shown to be a mortgage. English v. Lane, 1 Porter, (Ala.) 328; West v. Hendrix, 28 Ala. 226; Harris v. Miller, 30 Ala. 221; Sewell v. Price, 32 Ala. 97. If the deed was ever a mortgage the statute gave ten years in which the equity might have been asserted, and by the lapse of that period the equity of redemption has been foreclosed. Gen. St. 1866, c. 66, § 11; Laws 1870, c. 60; King v. Meighen, 20 Minn. 237, (264;) Parsons v. Noggle, 23 Minn. 328, and authorities cited supra.
Gen. St. 1878, c. 75, § 29, does not refer to an equitable mortgage but only to the ordinary legal mortgage, which merely gives a lien on realty. Gen. St. 1878, c. 40, § 23, is the statute referring to conveyances absolute in form given as security. The word "deed" is used in this latter statute in contradistinction to the word "mortgage" used in the former, and makes the distinction intended by the statute. It also shows that in this state an absolute conveyance given as security passes the fee absolutely to the grantee. If the fee did not pass to the grantee, the grantor could not pass it to the grantee. See authorities cited supra and White v. Lucas, 46 Iowa 319.
The defendant asks that he be confirmed in his title and possession of the land in question, and that plaintiff's deed be declared a mortgage and cancelled of record. He has not paid the mortgage debt, has not offered to do so and does not now offer to do so. It is not equity to grant to defendant the relief prayed for without payment or offer of payment of the mortgage debt. "He who asks equity must first do equity." "A court of equity will never permit an equitable title to prevail over the legal, unless for the promotion of justice and equitable principles." Burdick v. Wentworth, supra, and cases cited supra. The issues in this action are res adjudicata. King v. Meighen, 20 Minn. 237, (264.)
R. A. Jones and H. R. Wells, for respondent.
The plaintiff claims title under a conveyance, absolute in terms, from Alexander Holton and David Holton to him, dated August 27, 1855, -- Alexander Holton then being the owner of the land, -- and a deed of quitclaim by Holton to Martin Henderson, dated August 6, 1857, and a conveyance by Henderson to plaintiff, dated March 27, 1869. As to the deed from Holton to plaintiff, the court below finds that, though absolute in form, it was in fact executed as security for a debt due plaintiff from the Holtons, and that, at the time of executing it, plaintiff executed to them an agreement in writing, not under seal, agreeing to convey the land to them on payment of the note which was evidence of the debt, and of the taxes.
As to the deeds from Holton to Henderson, and from Henderson to plaintiff, the facts found affecting it are: That in the spring of 1856 Alexander Holton sold to David Holton, Sr., all his right, title, and interest in the land, and executed to him a bond to convey the same. On August 23, 1856, Alexander and David, Sr., bargained and sold it to Henderson, and executed to him a bond to convey it. On August 30, 1856, Henderson assigned this bond to one Watson, and September 1, 1870, Watson assigned it to defendant. Since June, 1855, Alexander Holton and his respective successors in interest have remained in the possession of the land, and the plaintiff has never been in the possession thereof; that is, as we understand the findings of the court, David Holton, Sr., Henderson, Watson, and defendant, each, when his interest accrued under the bond to convey and the assignments, entered upon and remained in possession while his interest continued, -- the defendant still being in possession. Though the evidence as to the possession is not very full, we think it sufficient to justify the finding as to the only time material here; that is, the time of the conveyance by Henderson to plaintiff. The possession of Watson was notice of his rights, and plaintiff took whatever title he derived through the Henderson deed subject to them. This, irrespective of the fact that the land in controversy was included in the deed from Alexander Holton to Henderson by mistake, and that it was only a quitclaim, and of the question whether the bond from Alexander and David Holton, Sr., and the various assignments were recorded in the proper book, so as to make the record notice, disposes of plaintiff's claim under the Henderson deed.
There remains only the question of his right to the...
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