Muller v. Flavin

• Decision Date: 29 August 1900
• Citation: 83 N.W. 687,13 S.D. 595
• Parties: MULLER v. FLAVIN.
• Court: South Dakota Supreme Court

83 N.W. 687

13 S.D. 595

MULLER v. FLAVIN.

Supreme Court of South Dakota

August 29, 1900

Appeal from circuit court, Bonhomme county; E. G. Smith, Judge.

Action by Henry A. Muller against Timothy F. Flavin. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Aikens & Judge, for appellant. Elliott & Stilwill and French & Orvis, for respondent.

CORSON J.

This is an action to quiet title to a tract of land in Bonhomme county, under section 5449, Comp. Laws. The jury having disagreed, the case was tried by the court upon stipulation of the parties, and, findings and judgment being in favor of the defendant, the plaintiff appeals.

The title of the plaintiff is based upon a patent of the United States issued to William Muller, Sr., a deed from Muller Sr., to Mary Kirk, and a deed from Mary Kirk to the plaintiff. The defendant's title is based upon a sale of the property under an execution issued in an action in favor of the defendant, Flavin, and against William Muller, Jr. the father of the plaintiff. It is claimed on the part of the defendant that the transaction between Muller, Sr., Muller Jr., and Mary Kirk was intended as a mortgage to secure a loan of $1,200 made by said Mary Kirk to said Muller, Jr and which Muller, Jr., assumed to pay, and that the title to the property, upon such payment, was to vest in him; and that by virtue of the sale under the execution issued under his judgment the defendant acquired the equity of redemption of said Muller, Jr., in the property. The court found, as claimed by the defendant, that the transaction between Muller, Sr., Muller, Jr., and Mary Kirk was intended as a mortgage, with the right of redemption in Muller, Jr., and that under and by virtue of the sale of the property under the judgment recovered against Muller, Jr., the equity of redemption in the property became vested in the defendant, Flavin, and that he was entitled to judgment quieting the title to the property in him, and such judgment was accordingly entered. The appellant contends that the finding of the court that the transaction between Muller, Sr., Muller, Jr., and Mary Kirk constituted a mortgage is not supported by the evidence. The principal question in this case, therefore, is, was the court justified in finding that the transaction between Muller, Sr., Muller, Jr., and Mary Kirk constituted a mortgage? It appears from the undisputed facts that in March, 1889, Muller, Sr., who was the owner of the tract of land in controversy, executed a warranty deed to the same to Mary Kirk, who, at the time of the execution of the deed, paid Muller, Sr., $200, and subsequently, on the 8th of April, 1889, caused to be remitted to him at Davenport, Iowa, $1,000 by draft. The deed from Muller, Sr., to Mary Kirk was deposited in the bank to be delivered to her upon the payment of the $1,000 balance. On May 4, 1889, Mary and James Kirk and Muller, Jr., executed a written instrument, the material parts of which are as follows: "Bond for deed. This indenture, made this 4th day of May, A. D. 1889, between Mrs. Mary Kirk, of Bonhomme county, territory of Dakota, of the first part, and William Muller, Jr., of the second part, of Bonhomme county, territory of Dakota, witnesseth: That the party of the first part, for and in consideration of one dollar, now received by the said party of the first part, and upon the express condition, which is hereby declared a condition precedent, that the said party of the second part, his heirs, executors, administrators, or assigns, shall well and faithfully perform the covenants hereinafter mentioned, do hereby, for herself, her heirs, executors, administrators, and assigns, covenant and agree to deliver to said party of the second part a deed in fee simple for all that certain piece or parcel of land situate, lying, and being in the county of Bonhomme and territory of Dakota, known and described as follows, to wit: *** And the said party of the second part does hereby, for himself and his heirs, executors, administrators, and assigns, covenant and agree to and with the said party of the first part, her heirs, executors, or assigns, as follows, to wit: First. To pay the said party of the first part, her heirs, executors, administrators, or assigns, the further sum of twelve hundred dollars, as follows: The sum of twelve hundred dollars on the 4th day of May, 1894, together with interest, payable annually on the 8th day of April each year, at the rate of nine per centum per annum until due, and nine per centum per annum interest, payable annually, on all sums, whether principal or interest, after due; said payments to be made at Springfield, D. T. Secondly. Said party of the second part to pay all taxes and assessments on said land for the year 1889 and subsequent years, and to repay them to said party of the first part if she shall have paid them, with nine per centum interest per annum for each year's taxes, as damages, until paid." There was the usual condition in the instrument that Muller should give up the possession at the end of the five years if the money specified therein had not been paid, etc. It further appears that about the time Muller, Sr., executed the deed to Mary Kirk, Muller, Jr., took possession of the property, and remained in possession until about February, 1896, when the plaintiff claims to have purchased the property from Mary Kirk. Muller, Jr., paid no rent for the property, but paid the interest stipulated in the instrument, which we shall denominate hereafter a "bond for deed," up to May 4, 1894. In January, 1896, Muller, Jr., executed to Mary Kirk a release of his interest in said property, and on February 7th of the same year Mary Kirk declared the bond for deed forfeited, and the quitclaim deed or release from Muller, Jr., was delivered to her, and she thereupon executed a deed to the same premises to Henry Muller, the plaintiff herein, in consideration of the sum of $1,415, part of which was paid at the time, and the balance secured by mortgage upon the property. In December, 1895, and prior to the last transaction referred to between the plaintiff and Mary Kirk, the defendant caused to be issued an execution upon a judgment recovered by him against Muller, Jr., under and by virtue of which the interest of Muller, Jr., in the property was sold, and bid in by the defendant, Flavin, for the sum of $508; that being the amount of his judgment, costs, etc. The court found the value of the property in March, 1889, when the same was conveyed by Muller, Sr., to Mary Kirk, to have been at least $2,500, and that at the time of the execution of the deed from Mary Kirk to the plaintiff in February, 1896, the value was about the same. It further appears from the evidence that subsequent to May 4, 1894, Muller, Jr., informed James Kirk, the husband of Mary Kirk, who transacted most of the business as her agent, that he would not be able to redeem the property, and in January, 1896, requested said James Kirk to transfer the property to his son, the plaintiff herein, and which, it seems, resulted in the transaction of February 7th between Mary Kirk and the plaintiff, as above stated. It further appears that the sum of $1,415, which the plaintiff agreed to pay for the property, was the amount that was due at that time from Muller, Jr., under the stipulation in the bond for deed. It is contended on the part of the appellant that the evidence shows that Mary Kirk purchased the property from Muller, Sr., for $1,200, and that that was an independent transaction; that subsequently she and her husband agreed with Muller, Jr., to sell him the property for the sum of $1,200, and that that was an independent transaction, having no connection with the sale of the property by Muller, Sr. The appellant further contends that Mary Kirk, in February, 1896, declared said bond forfeited, and sold said premises to the plaintiff; and that, as before stated, the evidence was insufficient to justify the court in finding that the transaction was a mortgage. It is contended on the part of the respondent that it affirmatively appears from the bond for deed that the same was given in the nature of a defeasance by Mary Kirk to Muller, Jr., and was intimately connected with, and in fact constituted a part of, the transaction between Muller, Sr., and Mary Kirk, as is shown by the fact that Muller, Jr., stipulated to pay the $1,200 absolutely, with interest at 9 per cent. per annum from April 8, 1889, until May 4, 1894, and that, while the bond for deed bore date of May 4th, it was stipulated the interest should be paid from April 8th, the time when the last payment of $1,000 was made to Muller, Sr.; and that the indorsements on the back of the bond show that the interest was paid as stipulated in the bond for the period of five years. The respondent further contends that the fact that the amount paid to Muller, Sr., for the property was less than one-half of its value as found by the court, and the amount for which Mary Kirk sold the property to the plaintiff was only a little more than one-half of its value, tends strongly to prove that the transaction was intended as a mortgage. Respondent further contends that the fact that Muller, Jr., entered into possession of the property at the time the deed was executed by Muller, Sr., in the spring of 1889, and remained in possession until the same was transferred to the plaintiff in February, 1896, without the payment of any rent therefor, also tends very strongly to prove that the transaction between the parties was intended as a mortgage, and that the fact that Muller, Jr., notified Mary Kirk, through her husband, James Kirk, that he could not redeem the property, and that the same was, upon his request, conveyed to his son, Henry Muller, for the amount...