Stall v. Jones

• Decision Date: 18 March 1896
• Docket Number: 6282
• Citation: 66 N.W. 653,47 Neb. 706
• Parties: IRWIN STALL, APPELLEE, v. CLAUDIUS JONES ET AL., APPELLANTS
• Court: Nebraska Supreme Court

66 N.W. 653

47 Neb. 706

IRWIN STALL, APPELLEE, v. CLAUDIUS JONES ET AL., APPELLANTS

No. 6282

Supreme Court of Nebraska

March 18, 1896

APPEAL from the district court of Seward county. Heard below before WHEELER, J.

REVERSED AND case DISMISSED.

Reese & Gilkeson and D. C. McKillip, for appellants:

More than the mere preponderance of evidence is necessary to establish the claim that a deed absolute on its face is a mortgage. (Cadman v. Peter, 6 S.Ct. [U.S.] 957; Tilden v. Streeter, 8 N.W. [Mich.] 502; Howland v. Blake, 97 U.S. 624; Woodworth v. Carman, 43 Iowa 504; Walker v. Farmers Bank, 14 A. 819 [Del.]; Satterfield v. Malone, 35 F. 451; Lance's Appeal, 4 A. 375 [Pa.]; Maher v. Farwell, 97 Ill 56; Pancake v. Cauffman, 7 A. [Pa.] 67; Luver v Lyons, 40 Iowa 510; Butler v. Butler, 1 N.W. [Wis.] 70; Schade v. Bessinger, 3 Neb. 144; Deroin v. Jennings, 4 Neb. 97; Ford v Joyce, 78 N.Y. 618; Boardman v. Davidson, 7 Abb. Pr., n. s. [N.Y.] 439; Jasper v. Hazen, 58 N.W. [N. Dak.] 457.)

The action is barred. (Morrow v. Jones, 41 Neb. 867; Borden v. Clow, 30 P. 821 [Nev.]; Fisk v. Stewart, 26 Minn. 372; Rogers v. Benton, 38 N.W. 768 [Minn.].)

Reference was also made to the following cases: Knowles v. Knowles, 86 Ill. 6; Kent v. Lasley, 24 Wis. 654; Moreland v. Barnhart, 44 Tex. 275; Glisson v. Hill, 2 Jones Eq. [N. Car.] 256; Todd v. Campbell, 32 Pa. 250; Sloan v. Becker, 26 N.W. 730 [Minn.]; Cooper v. Skeel, 14 Iowa 578; Noel v. Noel, 1 Iowa 423.

Pound & Burr, R. P. Anderson, George H. Terwilliger, and Thomas A. Healey, contra.

References to question as to the quantity of proof required: Southard v. Curley, 134 N.Y. 148; Newman v. Edwards, 22 Neb. 248; Price v. Karnes, 59 Ill. 276; Littlewort v. Davis, 50 Miss. 403; Darst v. Murphy, 119 Ill. 343; Perdue v. Bell, 83 Ala. 396; Bailey v. Bailey, 115 Ill. 551; Gassert v. Bogk, 7 Mont., 585; Knapp v. Bailey, 79 Me. 195; Cosby v. Buchanan, 81 Ala. 574; McMillan v. Bissell, 63 Mich. 66; Wylie v. Charlton, 43 Neb. 840; Hoyt v. Schuyler, 19 Neb. 652; Snowden v. Tyler, 21 Neb. 199; Bowman v. Griffith, 35 Neb. 361.

References to question as to statute of limitations: Newman v. Edwards, 22 Neb. 248; Lebley v. Farmers Loan & Trust Co., 139 N.Y. 461; Paschall v. Hinderer, 28 Ohio St. 568; Woodworth v. Carman, 43 Iowa 504; Odenbaugh v. Bradford, 67 Pa. 96; Darst v. Murphy, 119 Ill. 343.

The following cases were also cited: Worthington v. Worthington, 32 Neb. 338; Morse v. Raben, 27 Neb. 145; Newman v. Edwards, 22 Neb. 248; Douglas v. Moody, 80 Ala. 61; Russell v. Southard, 12 How. [U.S.] 139; Howe v. Powell, 40 La. Ann., 309.

OPINION

The facts are stated in the opinion.

IRVINE, C. J.

In December, 1875, Stall conveyed to Jones the northwest quarter of section 22, township 10 north, of range 2 east, in Seward county. December 17, 1891, he instituted this action for the purpose of having the conveyance declared to have been a mortgage, for an accounting of the amount due thereon, and of the rents and profits of the land which had been in Jones' possession ever since the conveyance. The answer of Jones admits the conveyance, but alleges that it was in pursuance of an absolute sale of the premises, pleads laches, the statute of limitations, and adverse possession. The district court found for the plaintiff and also made special findings, not necessary to here notice because they amounted to a general finding for plaintiff on the issues joined. The defendant Jones appeals the other defendants not appearing to have any beneficial interest.

The case in its nature calls for a review of the evidence to ascertain whether it supports the findings of the district court; and the appellant insists that the rule in such cases is that a mere preponderance of the evidence is not sufficient to establish the plaintiff's case; that in order to show that a conveyance absolute in form was in legal effect a mortgage, the evidence must be free from doubt, or at least that it must be of a most clear and convincing character. This position is supported to a certain extent by Schade v. Bessinger, 3 Neb. 140, and Deroin v. Jennings, 4 Neb. 97. The rule stated in the latter case is that a court of equity will not declare a deed absolute in form a mortgage unless the proof is clear, consistent, and satisfactory that the object of the transaction was to create a security for the payment of money. On the other hand, it has been held in relation to similar statements with regard to the degree of evidence required to establish the good faith of a conveyance from husband to wife, that in all civil cases only a preponderance of the evidence is necessary (Stevens v. Carson, 30 Neb. 544, 46 N.W. 655), and likewise as to the establishment of a parol gift (Wylie v. Charlton, 43 Neb. 840, 62 N.W. 220). In the case last cited it was said that in determining on which side the preponderance of evidence lay, the circumstances naturally casting suspicion upon testimony to establish a parol gift were proper for consideration, but that such circumstances did not create a different rule as to the degree of evidence required. We adhere to the doctrine of the two later cases, that only a preponderance of evidence is required to establish an issue in civil actions; and we also adhere to the settled doctrine of this court that it cannot in the exercise of its appellate jurisdiction undertake to weigh conflicting evidence, but will, where the evidence is conflicting, refuse to set aside the finding of the trial court. Still, we do not think that this rule requires that we should in all cases sustain a finding merely because a search through the record discloses here and there isolated statements of witnesses which, taken together and disregarding all the rest, would sustain the finding. It is necessary to regard the case made by the successful party to some extent as an entirety; and we think the rule stated in Schade v. Bessinger and Deroin v. Jennings a correct one, not at all conflicting with other cases, provided it be applied simply so far as to require that in such cases as we are considering the plaintiff, to prevail, must present consistent and satisfactory evidence, which, if believed, would be sufficient to establish his case. If on his side such evidence is presented, the mere fact that it is contradicted by defendant's witnesses would not prevent a recovery provided the trial court in weighing the testimony considered the evidence on behalf of plaintiff worthy of belief. But the plaintiff's proof, when taken by itself, ought to be reasonable and consistent with known facts. In the case before us it is possible to accept a portion of the plaintiff's testimony, and a portion of defendant's, and thus gain sufficient to support the findings; but in order to do so it is necessary to believe the plaintiff in some points where he is contradicted by several witnesses, by his own conduct, and by the circumstances, and then to follow this by absolutely disbelieving and rejecting other portions of his testimony and accepting on these points testimony of the defendant contradicted by the plaintiff. A complete review of the 400 pages of evidence is impracticable and it would be unprofitable. We shall content ourselves by an attempt to summarize its most important features.

The plaintiff's testimony is that he bought the land in question in 1874. It was incumbered by a mortgage in favor of R. E. Moore, for $ 500, bearing twelve per cent interest, and due in May, 1876. Stall became indebted to Jones to an amount of $ 80 or over, and in the autumn of 1875, an execution having been issued on a judgment against him in favor of a third person, he made arrangements with Jones by which Jones agreed to advance him other money so as to make his indebtedness $ 520. To secure this Stall executed the deed in question, being in form an absolute conveyance of the premises. Jones, on his part, according to Stall's testimony, agreed to discharge Moore's mortgage when it became due and to carry the debt at ten per cent. It is beyond dispute that an indebtedness of $ 520 was created from Stall to Jones at about this time, and that Stall paid this from time to time so that it was entirely discharged in March, 1878. Jones was let into possession on the execution of the deed, and has ever since occupied the land by his tenants. When Moore's mortgage came due he paid it. Stall also testifies that in 1877 he found a purchaser for the land at $ 1,200, and consulted Jones in regard to its sale; but Jones advised him not to sell, saying that he, Jones, would take care of it and that Stall could realize more than he was then offered. Stall also testifies to a recognition by Jones in September, 1882, of Stall's ownership; but, even according to Stall's testimony, this was somewhat equivocal. It was to the effect that Stall met Jones in Seward, and "told him we had better make a sale of the land, as I would like to get a little money out of it, and he told me no, to let the land go till after election, then he told me it was all right, that I could do without the money and after election he would make it all right." There is no distinct evidence of any further transactions until 1889, when Stall testifies that he demanded a reconveyance and Jones wrote him a check for $ 20, which he handed to him and said that was all he could do, and then rushed out. In cross-examination Stall says that he understood from what Jones said that that transaction ended the business. Stall took the check and used its proceeds. In 1890, according to Stall, he again besought Jones for a settlement, and Jones said the affair was too old to open up. To a certain extent Stall is corroborated by his wife in regard to the purpose of executing the deed; and he is in part...