Phoenix v. Gardner

• Decision Date: 01 January 1868
• Citation: 13 Minn. 396
• Parties: JOHN D. PHOENIX and others v. JONATHAN R. GARDNER and others.
• Court: Minnesota Supreme Court

Page 396

13 Minn. 396

JOHN D. PHOENIX and othersv.

JONATHAN R. GARDNER and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Nicollet county, granting a new trial.

Action to foreclose as a mortgage a deed absolute in terms, alleged by the complaint to have been given as collateral to secure the payment of a promissory note. The answer alleged that it was given as a payment of the note. On the trial two letters of Gardner to Phœnix were admitted to show the purpose of the deed. On his defence the defendant Gardner offered to testify what his intention was in giving the deed, but it was excluded. The finding of the jury was in favor of defendants. The court below set it aside as against the evidence.

E. St. Julien Cox, for appellants.

Charles S. Bryant, for respondents.

WILSON, C. J.

When this case was before us at the last term my brethren held that on account of certain irregularities and defects in the record it would be proper to remand it for an amended return. The amended return has been made and filed in this court, and cures the formal errors which before stood in the way of a disposition of the case on the merits. Certain questions not before considered we will now pass upon.

At this stage of the case the objection that the complaint does not state facts sufficient to constitute a cause of action will not be allowed if the pleading can be sustained by the most liberal intendment in its favor. If the complaint is informal, the defendants' remedy was in the court below.

The allegation that the defendants delivered to the plaintiffs a warranty deed of certain lots as collateral to secure the payment of a promissory note shows that the deed was in legal effect a mortgage. A deed absolute on its face, given as security for a debt is a mortgage, and the character of the transaction may be shown by parol evidence of the circumstances under which the deed was made, and the relation subsisting between the parties. See 3 Lead. Cas. in Eq. (3d Am. Ed.) 624, 630. The complaint, therefore, we think, is not fatally defective.

The letter accompanying the deed was admissible evidence to show the nature of the transaction. It was part of the res gestæ. So, also, was the letter of the defendant written in May, 1861, competent evidence; it tended to prove a fact inconsistent with the theory that the deed was intended as an absolute conveyance.

The evidence of the defendant [Gardner] as to what his intention...