Smith v. Hoff
| Decision Date | 25 March 1912 |
| Parties | SMITH v. HOFF |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward county; Goss, J.
Action to determine adverse claims to land and quiet title thereto. Judgment for defendant. Plaintiff appeals.
Affirmed.
Palda Aaker, Green, & Kelso, for appellant.
Evidence was wholly insufficient to sustain the claim that the transaction between plaintiff and defendant was that of a loan of money, with the sheriff's certificates and the contracts, Exhibit "1," as security therefor. 27 Cyc. 1025, and note; Jasper v. Hazen, 4 N.D. 1, 23 L.R.A. 58, 58 N.W. 454; Forester v. Van Auken, 12 N.D. 175, 96 N.W. 301; Little v. Braun, 11 N.D. 410 92 N.W. 800; McGuin v. Lee, 10 N.D. 160, 86 N.W. 714.
Time being expressly declared of the essence of the contract default, followed by notice of cancelation, extinguished all rights of the defendant. Fargusson v. Talcott, 7 N.D. 183, 73 N.W. 207; Martinson v. Regan, 18 N.D. 467, 123 N.W. 285.
Defendant having failed to redeem, was barred of all rights in the property after March 9, 1908. Southard v. Pope, 9 B. Mon. 261; Turpie v. Lowe, 158 Ind. 314, 92 Am. St. Rep. 310, 62 N.E. 484; Bigler v. Jack, 114 Iowa 667, 87 N.W. 700; Russell v. Finn, 110 Iowa 301, 81 N.W. 589.
Scott Rex, for respondent.
When it is doubtful whether the transaction is a mortgage or a conditional sale, it will generally be treated as a mortgage. Jones, Mortg. § 279, note 205; Kelley v. Leachman, 3 Idaho 392, 29 P. 849; Jeffery v. Hursh, 58 Mich. 246, 25 N.W. 176, 27 N.W. 7; Heaton v. Darling, 66 Minn. 262, 68 N.W. 1087; 27 Cyc. 979, 998, cases cited, notes 10-12; Wilson v. McWilliams, 16 S.D. 96, 91 N.W. 453; Duerden v. Solomon, 33 Utah 468, 94 P. 978; Jones v. Gillett, 142 Iowa 506, 118 N.W. 314, 121 N.W. 5; Raski v. Wise, 56 Ore. 72, 107 P. 984; Keithley v. Wood, 151 Ill. 566, 42 Am. St. Rep. 265, 38 N.E. 149; Halbert v. Turner, 233 Ill. 531, 84 N.E. 704; Hull v. Burr, 58 Fla. 432, 50 So. 754; Smith v. Jensen, 16 N.D. 408, 114 N.W. 306; Niggeler v. Maurin, 34 Minn. 118, 24 N.W. 369; King v. McCarthy, 50 Minn. 222, 52 N.W. 648; Clark v. Landon, 90 Mich. 83, 51 N.W. 357.
BRUCE, J. GOSS, J., did not participate.
This is an action to determine adverse claims to certain tracts of land in the city of Minot and the village of Palermo, and to quiet the title thereto. It appears from the evidence that on June 5, 1903, the defendant, John C. Hoff, was the owner of the real estate in controversy, and on that date mortgaged the said property to the Minot National Bank for the sum of $ 1,000. On July 15, 1905, the mortgage having been foreclosed, the premises were sold by the sheriff to the bank for the aggregate sum of $ 1,465.62. Later, and on December 1, 1905, one Swords, as receiver, and for and on behalf of said bank, purchased a sheriff's certificate issued upon a judgment sale of a portion of the premises for the sum of $ 487.51. On March 9, 1907, Swords, as such receiver, sold and assigned both of these certificates to the plaintiff and appellant, James L. Smith, for the sum of $ 2,500, and on March 22, 1907, sheriff's deeds were issued to Smith. On March 9, 1907, and a short time before the issuance of the sheriff's deeds, but on the same day and immediately after the assignment to him of the certificates the plaintiff entered into a contract with the defendant, Hoff, in words and figures as follows: etc. This contract was signed by the plaintiff, Smith, and by the defendant, Hoff. It is also fairly well established by the evidence, though there is a conflict upon this point, that at about the same time Hoff paid to Swords the difference between the $ 2,500 and the amount due to the bank on the sheriff's certificates. No notes, however, or other evidence of indebtedness, were given to Smith in this transaction, and defendant has never paid anything to the plaintiff on the contract and never paid any taxes on the real property, and was wholly in default on the 16th day of March, 1908. On that date the plaintiff served on defendant a notice of cancelation of the contract under the statute, and this notice fixed the 18th day of April, 1908, as the day on which the contract would terminate. On April 18, 1908, defendant caused a notice to be served upon the plaintiff to the effect that he had deposited in the Farmers & Merchants' State Bank at Palermo the sum of $ 2,451.27 to meet the payments due, and had instructed the said bank to pay over the said money upon the receipt of a good and sufficient warranty deed. The evidence, however, shows that no such money was ever actually paid to the bank, nor is there any proof of any further effort towards performance of the contract on the part of the defendant, nor any other assertion of title to the property until the commencement of the action at bar, which was on April 28, 1908. The defendant, however, was in the possession of the land both on March 9, 1907, and at the time of the trial.
In his answer to this action defendant asked to have it decreed "that the plaintiff had no right, title, or interest or estate in the premises involved, save and excepting a mortgage therein; that such mortgage can only be foreclosed in the manner prescribed by law, and that the defendant be adjudged entitled to redeem from such foreclosure at any time within one year from the day of such foreclosure sale. The claim of plaintiff in the action, in short, was that he bought the certificate of sale outright from the receiver, Swords; that he gave the defendant a contract of sale, to reconvey upon the latter performing the conditions of the contract on or before March 9, 1908; that the defendant defaulted in these conditions; that plaintiff gave due notice of the termination of the agreement, and that such notice and such default operated to extinguish all interest or right of the defendant in the property. The defendant claimed, on the other hand, that the assigning of the sheriff's certificates from the receiver of the bank to the plaintiff, Smith, and the subsequent issuance of the sheriff's deeds thereunder to the plaintiff, and the execution of the contract between the plaintiff and the defendant, constituted one transaction between plaintiff and defendant, in the nature of a loan of money, with the legal title under the sheriff's deeds and the said certificates held by plaintiff as security only for the repayment of the $ 2,500 loan. The trial court found and decreed that plaintiff had no right, title, estate, or interest except that of an equitable mortgagee in the sum of $ 3,267.50, and from this judgment plaintiff appeals.
The question for determination is whether at the time the appellant purchased the certificates from the receiver of the bank he did so as the agent of the respondent, Hoff, loaning to him, at the time, the $ 2,500 necessary to pay the original mortgage and judgment debts, and to take up the certificates of sale and taking the certificates and sheriff's deeds in his own name as security for such advances. In other words, whether the certificates of sale which were assigned to Smith, and the sheriff's deeds, which were afterwards obtained, constituted an equitable mortgage.
It seems to be well established that if a conveyance is made in fee with a covenant of warranty, and there is no defeasance either in the conveyance or in a collateral paper, the parol evidence by which it is attempted to show that the deed was intended to secure a debt and operate only as a mortgage must be clear, unequivocal, and convincing, or the presumption that the instrument is what it purports to be must prevail. Coyle v. Davis, 116 U.S. 108, 29 L.Ed 583, 6 S.Ct. 314; Cadman v. Peter, 118 U.S. 73, 30 L.Ed. 78, 6 S.Ct....
To continue reading
Request your trial