Samuelson v. Mickey

• Decision Date: 17 May 1905
• Citation: 103 N.W. 671,73 Neb. 852
• Parties: SAMUELSON v. MICKEY ET AL.
• Court: Nebraska Supreme Court

73 Neb. 852

103 N.W. 671

SAMUELSON

v.MICKEY ET AL.

Supreme Court of Nebraska.

May 17, 1905.

Syllabus by the Court.

1. The test whereby to determine whether a deed absolute on its face should be held to be a mortgage is whether the relation of the parties to each other, as debtor and creditor, continues. If it does, the transaction should be treated as a mortgage; otherwise not. Riley v. Starr, 67 N. W. 187, 48 Neb. 243.

2. Evidence examined, and held insufficient to sustain a finding that a deed absolute on its face was intended to operate as a mortgage.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Polk County; Evans, Judge.

Action by Oscar Samuelson against John H. Mickey and others. Judgment for plaintiff, and defendants appeal. Reversed.F. I. Foss, R. D. Brown, and King & Bittner, for appellants.

E. E. Stanton and Mills & Mills, for appellee.

ALBERT, C.

This suit was brought by Oscar Samuelson, the appellee, to have a certain deed, absolute in form, given by himself and wife to John H. Mickey, one of the appellants, declared a mortgage, and a subsequent conveyance, also absolute in form, from said appellant to Arthur A. Smith, of the same premises, a mere assignment of said mortgage. The first deed was given on the 26th day of March, 1897. At that time the appellee was indebted to the Connecticut Mutual Life Insurance Company in the sum of $1,200; to Arthur A. Smith, $1,500; to a local bank, of which the said grantee was president, $75; and to Oscar A. Johnson, $700; and these several debts were secured by mortgage on the premises, which were liens thereon in the order stated. The first mortgage was past due, and the debt was drawing interest at 9 per cent. Default had been made in the payment of $120 interest on the second mortgage, which, by the terms of said agreement, made the whole amount due at the option of the holder. The third mortgage was also past due, and was drawing interest at the rate of 10 per cent. In addition to the foregoing, taxes levied against the premises amounting to $40 were past due and unpaid. The holder of the first mortgage was threatening foreclosure, and the appellee, being unable to renew or raise the money to discharge it, made the conveyance hereinbefore mentioned to avoid foreclosure.

It is not claimed by any of the parties to the suit that the conveyance to Mickey was intended to vest him with both the legal and beneficial title to the land. The testimony of the appellee is to the effect that at the time he made the conveyance it was understood and agreed that Johnson, the holder of the fourth mortgage, should have a certain time in which to pay the first mortgages, or a certain portion thereof, and assume the balance of the mortgage indebtedness, and, upon his doing so, Mickey should convey the land to him. He further testified that after the expiration of the time fixed for such payments, and after Johnson had failed to make them, he (the appellee) called on Mickey, who in these transactions also represented Smith, and told him of such failure, and that he would now take hold of the land himself, and that Mickey said, “All right; you are entitled to the land if anybody is.” And from that time on it was fully understood between him and Mickey that upon the payment of the mortgage indebtedness the land was to be reconveyed to the appellee.

Mickey was the principal witness for the appellants, and his version of the transaction is substantially the same as that of the appellee, down to and including the terms upon which the land was to be conveyed to Johnson, and his failure to comply with such terms. But he testifies that it was further understood and agreed that, in case Johnson should fail to make such payments and assume the...