Reese v. Rhodes
| Decision Date | 03 September 1890 |
| Docket Number | Civil 283 |
| Citation | 3 Ariz. 235,73 P. 446 |
| Parties | SAMUEL C. REES, Plaintiff and Appellant, v. WILLIAM R. RHODES, Defendant and Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright Judge.
Reversed.
Herndon & Hawkins, for Appellant.
The appellant alleged in his complaint that he was indebted to appellee in the sum of $ 4,450, and that in order to secure the same he made to the appellee the deed set out in the complaint, and that at the same time appellant made under seal and delivered to the plaintiff a written instrument in the nature of, or which operated as, a defeasance.
The trial judge erred in ruling that plaintiff could not prove that he was indebted, by any legal obligation, to defendant. Appellant offered to show that a judgment had been duly rendered against the plaintiff; that such judgment was and is valid, subsisting, unpaid, and unsatisfied; that defendant purchased such judgment and was and is the owner thereof that to secure this the deed was made by plaintiff to defendant, and the defeasance executed by defendant to plaintiff. All this evidence was excluded by the court.
If the defendant owned the judgment and held the same against plaintiff, and that judgment had never been paid or satisfied, and was still in force, it was proper that plaintiff should make this showing.
The defendant was afterwards permitted to testify that the debt was paid. The unsatisfied judgment on the records was better proof of this fact than defendant's mere statement especially as Rees, the plaintiff, testified that the same had never been paid and that the very purpose of the deed and defeasance was to secure and not to pay the same.
The question to be settled was whether there was a preexisting debt, and also whether the intention of the parties was to cancel the debt or to secure it. The judgment, if subsisting and owned by the defendant, would show a pre-existing debt, and the further fact that the evidence of the indebtedness is retained or not cancelled by defendant after the conveyance would be strong proof that the conveyance was taken merely as security. Jones on Mortgages, vol. 1, sec. 326.
In the case of Ennor v. Thompson, 46 Ill. 223, 224, the court says: "That the retaining the evidence of the indebtedness, after receiving a deed absolute in terms of the mortgaged premises giving back a lease to the grantor and receiving rents, characterize the transaction a mortgage." To the same effect, see Sutphen v. Cushman, 35 Ill. 186.
Baldwin & Johnston, for Appellee.
Appellant should pay or tender the amount of the indebtedness before being permitted to maintain this action. The supreme court of California says: Hughes v. Davis, 40 Cal. 120.
The facts are stated in the opinion.
Appellant denominates this a "suit in equity" to declare a deed absolute upon its face, and a defeasance given by appellee to appellant simultaneously with the delivery of the deed, a mortgage.
It appears from the record that the issues of facts in the cause were submitted to a jury that their verdict might be "advisory" to the court. As we have no courts of equity nor of law in this territory, and as the legislature has for a long time strenuously sought to abolish the distinction in procedure between "equity" and "law," the courts and the bar should dismiss from their minds the idea of "suits in equity" or "actions at law," so far as they tend to preserve that distinction. Our statute denominates all proceedings in courts of justice whereby a civil remedy for a wrong is sought, except in some special proceedings, civil suits. The courts and bar have clung so tenaciously to the observance of the distinction that in many instances the plain administration of justice has been thwarted. Our statutes (Rev. Stats. 1887) say that civil suits shall be begun by filing a complaint in the office of the clerk of the proper court (par. 649), and that the complaint shall set forth a full and clear statement of the cause of action without any distinction between suits at law and in equity (par. 668), and that the defendant may plead as many several matters, whether of law or of fact, as may be necessary for his defense (par. 734). To ascertain the rights of parties litigant, we look to the statutes or to the rules laid down by the courts of law, but for the enforcement of those rights we ignore the source of the rights and proceed under the statute. And under our statutes parties to a civil suit unless otherwise provided, are entitled to a trial by jury, and their verdict is not in any sense advisory--the judgment of the court must follow it, or the judge must set it aside as erroneous and order a new trial. This, then, is a civil suit to declare a deed absolute on its face a mortgage.
It is alleged in the complaint that on the twenty-sixth day of February, 1887, the appellant was indebted to the appellee in the sum of $ 4,450; that, to secure the payment of the same appellant executed and delivered to appellee a deed, absolute and unconditional on its face, conveying to him the estate therein described; that, at the time of the execution and delivery of such deed, the appellee executed and delivered to appellant a written agreement, whereby, after reciting the conveyance before mentioned and the agreement of appellee to reconvey to appellant, appellee covenants and agrees that if appellant shall pay him, within twelve months after the date of the instrument, the sum of $ 4,450, and the interest at the rate of one and one-half per cent per month, appellee will make and deliver to appellant a deed reconveying the premises to appellant,...
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Bilke v. State
...movement to abolish artificial distinctions between law and equity has roots which antedate statehood." Id. (citing Reese v. Rhodes, 3 Ariz. 235, 237, 73 P. 446, 446 (1890)). ¶ 15 Had the legislature intended § 12-2101(G) to preserve the distinction between law and equity, it could have sim......
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Herrmann v. Churchill
...pay the mortgage debt as a condition to relief in a suit seeking to have a deed declared a mortgage. Illustrative is Reese v. Rhodes, 3 Ariz. 235, 73 P. 446, 447 (1890), where the court '* * * We do not think that the appellant in such a case should be required to pay or tender the amount o......
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Day v. Wiswall
...between courts of equity and courts of law has been abolished. Manor v. Stevens, 61 Ariz. 511, 152 P.2d 133 (1944); Rees v. Rhodes, 3 Ariz. 235, 73 P. 446 (1890). If the defendant is personally before a court of equity, who doesn't the court have the power to order him to convey foreign lan......
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Kottayil v. Insys Therapeutics, Inc.
...in Arizona because, unlike Delaware, our state makes no distinction between courts of equity and courts of law. See Reese v. Rhodes, 3 Ariz. 235, 237 (1890). This argument is unavailing in light of the Delaware Chancery Court's broad discretion to fashion an award of enhanced damages that c......