Sullivan v. Woods

• Decision Date: 20 July 1897
• Docket Number: Civil 507
• Parties: MICHAEL J. SULLIVAN, Defendant and Appellant, v. WILLIAM P. WOODS et al., Plaintiffs and Appellees
• Court: Arizona Supreme Court

50 P. 113

5 Ariz. 196

MICHAEL J. SULLIVAN, Defendant and Appellant, v. WILLIAM P. WOODS et al., Plaintiffs and Appellees

Civil No. 507

Supreme Court of Arizona

July 20, 1897

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Joseph D. Bethune Judge.

Affirmed.

C. W Wright, for Appellant.

Thomas F. Wilson, Barnes & Martin, and Calvert Wilson, for Appellees.

Hawkins J. Rouse, J., concurs. Baker, C. J., dissenting.

OPINION

Statement of facts:--

This was an action of forcible entry and detainer, commenced before the justice of the peace of Tucson Precinct, appealed to the district court. On the 17th of August, 1894, Sullivan was indebted to the appellees in the sum of $ 1,361. To evidence and secure this debt, appellees had the promissory note of appellant and a mortgage on the real estate in controversy. On said day, the debt being due and unpaid, payment was demanded, and appellant gave a deed, absolute in its terms, to appellees, wherein he conveyed said real property to them. At the same time appellees gave appellant back an agreement, which is as follows: "Whereas, by deed bearing date the seventeenth day of August, 1894, Michael J. Sullivan sold and conveyed to William P. Woods and Reuben M. Aldridge those certain lots, numbered six (6), seven (7), ten (10), and eleven (11), in block numbered ninety-four (94), in the city of Tucson, according to the official map and survey of said city made and executed by S.W. Foreman, and approved by the mayor and common council of the said city of Tucson, then village of Tucson, June 26th, 1872, for value received it is hereby agreed by the said William P. Woods and Reuben M. Aldridge that the said Michael J. Sullivan has the right at any time within six months from the date hereof, upon the payment to the said William P. Woods and Reuben M. Aldridge of the sum of one thousand three hundred and sixty-one dollars lawful money of the United States, to repurchase the said described property, and the said William P. Woods and Reuben M. Aldridge hereby agree, upon the payment by the said Michael J. Sullivan, his heirs or assigns, to them, of the said sum of one thousand three hundred and sixty-one dollars lawful money of the United States, within six months from the date hereof, to reconvey by quitclaim deed the said described property to the said Michael J. Sullivan, his heirs or assigns. Michael J. Sullivan is to have the use of the said-described property, and is entitled to the rents, issues, and profits thereof, subject to the monthly payment of fifteen dollars per month as interest, the said monthly payment of fifteen dollars per month to be paid on the seventeenth day of each month for the term of six months from the date hereof; and, should the said monthly payment of fifteen dollars per month, as aforesaid, remain due and unpaid at any time for sixty days, then; and in that event, this agreement and all previous payments made thereunder shall thereby become and be forfeited, and the said Michael J. Sullivan shall vacate the premises herein described, and render peaceable possession of the same to the said William P. Woods and Reuben M. Aldridge, and surrender this agreement." At the time of making said deed and agreement appellees returned the note to appellant, and released the mortgage. Complaint in unlawful detainer was filed with the justice of the peace on the first day of March, A. D. 1895, alleging an oral lease was entered into on said 17th of August, 1894, whereby appellant leased of appellees for six months said real property at the rental of fifteen dollars per month, payable in advance; that by virtue of such lease appellant went into possession of said property, but, the lease having expired, appellees were entitled to the possession; that the rent due on the seventeenth day of February, 1895, was unpaid, and is due. Therefore, appellees demand possession of the premises, and a judgment for fifteen dollars. To this complaint appellant filed a general denial.

It appears in the record that appellant pleaded also that the justice court in which the suit was brought had no jurisdiction of the case, for the reason that the question of the title to said real property would be a question in the case; and in support of such plea the agreement above stated was filed in the case. This plea was overruled by the justice, the case was tried, and judgment entered for appellees. The case was appealed, then, to the district court. The district court tried the case, and at the trial found that the deed and agreement were contemporaneous, and, taken together, constituted a mortgage, and ordered judgment in favor of the appellant. A motion for a new trial was overruled by the court. Appellees gave notice of appeal to this court, and filed their appeal bond. The bond was approved by the clerk of the district court. On the 28th of June, 1895, the day before the district court finally adjourned for the term, said district court, on its own motion, vacated the judgment rendered for appellant, and rendered judgment in favor of appellees for possession of the premises, and gave judgment for the sum of fifteen dollars and costs. To this latter judgment appellant excepted, filed his motion to set it aside, which was overruled, and appeal was taken to this court.

HAWKINS J. (after stating the facts).--The appellant, in the trial of the cause, claimed that the agreement above stated was a defeasance, which changed the deed absolute, executed by defendant to plaintiffs, to a mortgage. Under the complaint and answer filed in the justice court the title to the real property was not in question. The only issue to be tried was the right of possession, and the justice correctly overruled the motion. The defendant did not sign the written agreement. It is by its terms simply an option permitting defendant to repurchase the property within six months from its date. In order for the deed, absolute on its face, with the written instruments, to become a mortgage, they must show, when construed together, that the intention of the parties to both was to secure a debt. Jones on Mortgages, sec. 16, and cases there cited. It would hardly be seriously contended that appellees could have sued appellant for $ 1,361, and recovered judgment against him for such sum as a debt, for the reason that when he gave the deed the evidence of the debt was surrendered, and the mortgage canceled, and the instruments, construed together, show clearly that it was the intention of all the parties to save the expense of a foreclosure. The appellant pleaded the general issue, and introduced the said agreement, and contended, as stated, that these two instruments constituted a mortgage. Proof of all parties, both plaintiffs and defendant, was heard by the court. When there is a substantial conflict in the evidence, a mere preponderance of evidence is insufficient to prove that an absolute deed was a mortgage. It must be shown that it was executed, delivered, and accepted and intended as a mortgage by clear and certain and conclusive evidence. Perot v. Cooper, 17 Colo. 80, 31 Am. St. Rep. 258, 28 P. 391. "When the written papers do not show that security was meant, it is incumbent upon the party seeking to establish a mortgage to show that a mortgage was intended." Gassert v. Bogk, 7 Mont. 585, 19 P. 281. "For a deed, absolute on its face, to be declared a mortgage, the testimony must establish a clear case." Ganceart v. Henry, 98 Cal. 281, 33 P. 92; Henley v. Hotaling, 41 Cal. 22; Hanford v. Blessing, 80 Ill. 188. "A deed absolute on its face, given by A to B for real estate therein described, and a bond given by B to A agreeing to convey...