Renas v. Green

• Decision Date: 06 February 1923
• Docket Number: Case Number: 11002
• Parties: RENAS v. GREEN et al.
• Court: Oklahoma Supreme Court

1923 OK 83

212 P. 755

88 Okla. 169

RENAS v. GREEN et al.

Case Number: 11002

Supreme Court of Oklahoma

Decided: February 6, 1923

Syllabus

¶0 1. Appeal and Error -- Review of Equity Case--Right to Jury Trial.

An action to have a deed absolute on its face declared to be a mortgage and for an accounting is one of purely equitable cognizance and neither party is entitled to a jury. In such actions, it is the duty of this court to weigh the evidence and decide the appeal in accordance therewith.

2. Mortgages--Absolute Deed as Mortgage.

Whether any particular transaction amounts to a mortgage, or a sale upon condition, or with agreement to reconvey upon a contingency, is to be determined by ascertaining whether the transaction was intended as a loan. The burden of proving that the instrument was intended to operate as a mortgage is upon the plaintiff, and to establish its character as a mortgage the evidence must be clear, unequivocal, and convincing.

3. Same--Deed Absolute and Not Mortgage.

Evidence examined, and held, to show by clear weight of the evidence that the deed was executed as an absolute conveyance and not as a mortgage.

Error from District Court, Stephens County; Cham Jones, Judge.

Action by W. C. Green and J. E. Green against Mary Renas to have warranty deed declared mortgage and for an accounting. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Womack, Brown & Cund and H. Grady Ross, for plaintiff in error.

J. B. Wilkinson, for defendants in error.

COCHRAN, J.

¶1 This action was commenced by W. C. Green and J. E. Green to have a warranty deed executed to Mary Renas on March 23, 1914, declared to be a mortgage and for an accounting. The case was tried to a jury and a verdict returned in favor of defendant in the sum of $ 200, and for all taxes paid by her since the execution of the deed by the plaintiffs to the defendant, and for the foreclosure of her mortgage lien. On the same date, judgment was rendered by the court which, after reciting the rendition of the verdict, ordered that the plaintiffs recover from the defendant the possession of the land in controversy and that the defendant recover from the plaintiffs the sum of $ 200 and taxes for the years 1914 to 1918, inclusive, and ordering that the property be sold and proceeds applied to the payment of the judgment in favor of the defendant. From this judgment the defendant has prosecuted this appeal.

¶2 It appears that both parties and the trial court treated this case as a jury case. No special interrogatories were propounded to the jury, but the case was submitted on general instructions and a general verdict returned. No findings of fact, either general or special, were made by the trial court and it does not appear that the trial court adopted the general verdict of the jury. An action to have a deed absolute upon its face declared to be a mortgage and for an accounting is one of purely equitable cognizance. Prentice v. Freeman, 76 Okla. 260, 185 P. 87. In such case neither party was entitled to a jury as a matter of right but the trial court was justified in submitting to a jury, to be answered by it, any interrogatory at all germane to the issues involved but the findings of the jury would be advisatory merely, and in such case it was not only right but the duty of the court to finally determine all questions of fact as well as law. Prentice v. Freeman, supra; Success Realty Co. v. Trowbridge, 50 Okla. 402, 150 P. 898; Murray et al. v. Snowder, 25 Okla. 421, 106 P. 645; Kentucky Bank & Trust Co. v. Pritchett et al., 44 Okla. 87, 143 P. 338; Hartsog et al. v. Berry et al., 45 Okla. 277, 145 P. 328. It is the duty of this court to weigh the evidence and determine which side has the clear weight of evidence and decide this appeal in accordance therewith. Prentice v. Freeman, supra; Wimberly v. Winstock et al., 46 Okla. 645, 149 P. 238.

¶3 Before weighing this evidence, we will call attention to the rule by which this evidence is to be weighed. In Worley, Receiver, v. Carter et al., 30 Okla. 642, 121 P. 669, a portion of the syllabus is as follows:

"Whether any particular transaction amounts to a mortgage, or a sale upon condition, or with agreement to reconvey upon a contingency, is to be determined by ascertaining whether the transaction was intended as a loan. If there remains a debt for which the conveyance was only a security, and the collection of which may be enforced independently of the security, the whole transaction amounts to a mortgage, whatever language the parties may have used in expressing their agreement. In such cases, it matters not that the transaction is evidenced by one or more instruments, or what the writings may or may not show, if, nevertheless, the agreement in fact exists. The real intention of the parties, either as shown upon the face of the writing, or as disclosed by extrinsic evidence, must govern in equity."

¶4 In McNamara v. Culver, 22 Kan. 661, the court said:

"The test is the existence or nonexistence of a debt. And equity looks behind the form to the fact. If the transaction was intended as a loan, if there remains a debt for which the conveyance is only a security, and the collection of which may be enforced independent of the security, equity will hold it a mortgage, no matter whether the transaction is evidenced by one or two instruments." Hall v. Russell, 72 Okla. 47, 178 P. 679; McKean v. McCloud, 81 Okla. 77, 196 P. 935.

¶5 Pomeroy in his work on Equity Jurisprudence, vol. 3, p. 2841, lays down this rule as to the degree of proof required:

"The presumption, of course, arises that the instrument is what it purports on its face to be, an absolute conveyance of the land; to overcome this presumption, and to establish its character as a mortgage, the cases all agree that the evidence must be clear, unequivocal, and convincing, for otherwise the natural presumption will prevail."

¶6 This is stated to be a general rule in vol. 19, R. C. L. 263, and is supported by numerous authorities.

¶7 In Armstrong v. Phillips et al., 82 Okla. 82, 198 P. 499, a portion of the fourth paragraph of the...