Parks v. Mulledy

• Decision Date: 08 July 1930
• Docket Number: 5497
• Citation: 49 Idaho 546,290 P. 205
• Parties: HARVE PARKS, Appellant, v. C. A. MULLEDY, Respondent
• Court: Idaho Supreme Court

290 P. 205

49 Idaho 546

HARVE PARKS, Appellant, v. C. A. MULLEDY, Respondent

No. 5497

Supreme Court of Idaho

July 8, 1930

MORTGAGES-PROOF REQUIRED TO DECLARE DEED AS MORTGAGE-APPEAL AND ERROR-CONFLICTING EVIDENCE.

1. In an action to have deed declared mortgage, evidence sustained findings that parties intended transaction as absolute conveyance with contract to repurchase.

2. One may purchase lands and simultaneously contract to reconvey for certain sum, without intention of either party that transaction should in effect be mortgage.

3. Respecting validity of absolute conveyance with contract to reconvey, whether consideration is antecedent debt or consideration then paid, or both, is immaterial.

4. Intent to establish that absolute conveyance is mortgage, or something other than it purports to be, must be proved clearly and satisfactorily.

5. Intention of parties when consummating agreement to execute deed determines whether conveyance irrevocably transfers title or operates merely as security.

6. Trial court being appropriate tribunal to determine whether evidence is convincing and satisfactory, findings upon conflicting or contradictory evidence are not reviewable.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.

Action to have a deed declared to be a mortgage. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

Leo McCarty, for Appellant.

Was the deed dated April 16, 1925, in fact, a mortgage and executed as security for a loan or was the same an unconditional conveyance intended to pass title? (41 C. J., p. 360; 27 Cyc., pp. 972, 973; 38 Cyc., p. 144; 19 R. C. L., pp. 264 265; Jones on Mortgages, 6th ed., p. 379; Duerden v Solomon, 33 Utah 477, 94 P. 980; Elliott v Bozorth, 52 Ore. 391, 97 P. 632; Niggeler v. Maurin, 34 Minn. 118, 24 N.W. 369; Bergen v. Johnson, 21 Idaho 619, 123 P. 484.)

Cox & Martin, for Respondent.

One claiming that a deed absolute in form is in fact a mortgage must make clear and convincing proof that a mortgage was intended by the parties. (Drennan v. Lavender, 41 Idaho 263, 238 P. 532; Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98.)

Where it is claimed that a deed is a mortgage plaintiff cannot recover without tendering the amount of the debt. ( Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

This is an action to have a deed, absolute on its face, declared to be a mortgage. The case was tried to the court without a jury, and, from a decree in favor of defendant, plaintiff appeals. But one question is presented by the record: Are the findings and decree sustained by the evidence?

On April 16, 1925, plaintiff was the owner and in possession of 470 acres of farming land situate in township 32 north, range 5 E., B. M., in Idaho county, Idaho, on which there was also a large quantity of standing timber. The court found in substance, upon conflicting evidence, that on said date plaintiff and his wife executed and delivered their absolute and unconditional warranty deed, regularly executed (afterwards recorded), conveying the said lands to the defendant, for a valuable consideration; that said deed was not intended as a mortgage or as security by either of the parties, and that upon delivery of said deed plaintiff was not indebted to defendant in any sum; that defendant did not loan, or agree to loan, any sum to plaintiff as a consideration for said deed; that on or about said April 16, 1925, defendant entered into a contract with plaintiff to reconvey the said premises for $ 5,250, payable, one dollar on the execution of the contract, $ 4,000 by assumption of a mortgage on the premises, and $ 1,249 on or before March 1, 1926; that the contract provided that in case plaintiff failed to pay said sum punctually and promptly, his rights thereunder should terminate and become of no effect; that said contract was not intended by either of the parties to modify the effect of the said warranty deed, and did not modify the same; that plaintiff, by said contract, bargained for and acquired the right to repurchase said property within the time and upon the terms in said contract specified; that after the expiration of the time specified in said contract, plaintiff asked and secured from defendant a short extension of time for repurchase, and upon the expiration of such extension of time advised defendant that he could not repurchase the property nor find any purchaser who would pay more than defendant had paid, and thereupon plaintiff surrendered his copy of the said contract and declared that he had no further interest under the same, nor further interest or claim to the premises therein described; that plaintiff has paid nor tendered no sums whatsoever to the defendant under the said contract, or otherwise, with respect to said property, and has produced no evidence of ability or willingness to pay the sums invested by defendant in the property, and the amount of defendant's present investment in the property exceeds the actual market value thereof; that at the time of making the said deed, plaintiff asked for and received permission to occupy a small house situated upon the premises, which plaintiff occupied at the time of the trial; that the remainder of the deeded premises has been in possession of defendant through tenants holding under him, and that plaintiff's possession and occupation have been permissive and not adverse to defendant's title; that prior to the commencement of this suit, plaintiff made no tender to defendant of the amount of any loan, together with any sums paid by defendant on account of taxes, or the mortgage for $ 4,000, or any sum whatsoever, and that plaintiff made no request of defendant for an accounting of rents and profits, or that defendant reconvey and deliver possession of said premises to plaintiff; that defendant is entitled to possession of the property; that plaintiff is not and has not been ready or willing to pay the sums alleged in the complaint to have been loaned plaintiff, made no tender into court, and offered no evidence of his willingness or ability so to do.

The undisputed evidence shows the execution and delivery, by plaintiff and wife, of an absolute warranty deed, in the usual form, to defendant, dated April 16, 1925, and a written agreement of the same date, executed by plaintiff and defendant, whereby defendant agrees to sell and convey to plaintiff the premises described in said deed, upon payment of $ 5,250, in instalments, payable as found by the court. The rental for the year 1925 is to be delivered to defendant and become his property, but in case plaintiff exercises his option to purchase, said rentals are to be applied on the purchase price. In addition, plaintiff agrees to reimburse defendant for any amounts...