Stall v. Jones

• Decision Date: 18 March 1896
• Citation: 47 Neb. 706,66 N.W. 653
• Parties: STALL v. JONES ET AL.
• Court: Nebraska Supreme Court

47 Neb. 706

66 N.W. 653

STALL

v.JONES ET AL.

Supreme Court of Nebraska.

March 18, 1896.

Syllabus by the Court.

1. While a preponderance of the evidence is sufficient to establish an issue in any civil action, and while this court will not, in the exercise of its appellate jurisdiction, weigh conflicting evidence, still, in order to sustain a finding for the plaintiff in an action to have a deed absolute in form declared a mortgage, the evidence on behalf of plaintiff, when taken together, and without regard to the contradicting evidence, should present a state of facts consonant with reason, and consistent in its different parts.

2. The statute of limitations runs against a bill to declare a deed absolute in form a mortgage in favor of a grantee in possession, from the time such possession becomes adverse to the grantor's title.

3. That grantee's possession is adverse may be inferred from the exercise by him of acts of ownership after payment of the debt.

4. In this state a deed absolute in form passes the legal title, although intended as security for a debt, and for most purposes treated as a mortgage.

5. Therefore, where the grantee under such a deed is in possession, the grantor's equity of redemption may be defeated by a parol settlement defeating his right to an accounting.

Appeal from district court, Seward county; Wheeler, Judge.

Action by Irwin Stall against Claudius Jones and others. Judgment for plaintiff, and defendant Jones appeals. Reversed.

Reese & Gilkeson and D. C. McKillip, for appellant.

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

IRVINE, C.

In December, 1875, Stall conveyed to Jones the N. W. 1/4 of section 22, township 10 N., of range 2 E., 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 Deroins 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 Deroins 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 12 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 10 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 became 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...