Swarm v. Boggs

• Decision Date: 10 July 1895
• Citation: 40 P. 941,12 Wash. 246
• Parties: SWARM v. BOGGS ET UX.
• Court: Washington Supreme Court

40 P. 941

12 Wash. 246

SWARM v. BOGGS ET UX.

Supreme Court of Washington

July 10, 1895

Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Action of ejectment by Axel W. Swarm against James Boggs and wife. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.

Byron Mellett, for appellants.

John C. Kleber, for respondent.

HOYT, C.J.

In March, 1891, the defendants became the owners in fee simple of the real estate, the title and the right to possession of which was in controversy in this action. Thereafter they made, executed, and delivered to one August Swarm their promissory note for $1,000, and to secure its payment made and delivered a mortgage upon the property. In May, 1893, the note so secured by this mortgage became due and payable, the principal and interest at that date amounting to the sum of $1,175. On the last-named date the defendants made, executed and delivered an instrument which, with the exception of the clause to be hereinafter set out, was in the form of a warranty deed, conveying the premises in question to the person named as mortgagee in the aforesaid mortgage, August Swarm, who thereafter, and before the commencement of this action, conveyed all of his right, title, and interest in the property to the plaintiff. The clause above referred to which was inserted in what would clearly without such insertion have been a warranty deed, was in the following language: "This deed is given in satisfaction of a certain note and mortgage for $1,000, dated March 25, 1891 and said grantors shall have the right to redeem or repurchase said premises at any time within one year by paying the said sum of $1,175, together with interest until said redemption at the rate of fifteen per cent. per annum and all costs and taxes paid by the grantee; the grantors to have possession for said year" And the effect of said clause upon the character of the instrument is the only question presented by this record. The appellants contend that its effect was to make of said instrument a mortgage while the respondent claims that it conferred upon the grantors therein only the right to repurchase the premises upon the conditions therein set out.

A deed which purports to convey a fee-simple title will be held to be a mortgage when it is made to appear, either from the face of the instrument or from oral testimony, that the parties intended it only as security. This rule is of long standing and has become so well established that it is not now open to discussion. It is also well settled-at least in the courts of this state-that a deed absolute upon its face will be construed in accordance with its terms, when it is so intended by the parties, even although it be accompanied by a contemporaneous agreement to reconvey within a specified time upon the payment of a certain...