Wilson v. Thompson

• Decision Date: 28 January 1896
• Parties: WILSON v. THOMPSON
• Court: Idaho Supreme Court

43 P. 557

4 Idaho 678

WILSON v. THOMPSON

Supreme Court of Idaho

January 28, 1896

DEED WHEN A MORTGAGE.-Defendants executed and delivered a deed of certain real property to plaintiff. At the same time plaintiff executed a contract to defendants by the terms of which plaintiff agreed to redeed to defendants the said land upon the payment to him of the sum of $800 with interest within one year, etc., defendants giving to plaintiff a promissory note for that amount. Held, that the deed and contract constituted a mortgage.

PLEADING.-Complaint in this case examined and held not to contain facts sufficient to constitute a cause of action.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded costs to appellants.

L. Vineyard and D. D. Williams, for Appellants.

A deed absolute on its face, and a separate agreement by the grantee for a reconveyance of the same tract to grantor upon payment of consideration named in the deed by a specified time, bearing same date as deed, constitute together a mortgage. (Kelley v. Leachman, 3 Idaho 392, 29 P. 849; Devlin on Deeds, sec. 1101; Jones on Mortgages, sec. 244; Brush v. Peterson, 54 Iowa 243, 6 N.W. 287; Hill v. Edwards, 11 Minn. 8; Baker v. Insurance Co., 79 Cal. 34, 21 P. 357; Wilson v. Schoenberger, 31 Pa. St. 295; Rietenbaugh v. Lutwick, 31 Pa. St. 131.) The test by which to determine whether a transaction is a mortgage or a defeasible sale is the fact whether or not there is a subsisting, continuing debt from the grantor to the grantee, and the only inquiry necessary to be made is, whether the debt still subsists between the parties. (Montgomery v. Spect, 55 Cal. 352.) If the debt subsisted after the instruments were executed, they constitute a mortgage. (Hickox v. Lowe, 10 Cal. 197; Gay v. Hamilton, 33 Cal. 686.)

Hawley & Puckett, for Respondent.

Appellants' first proposition, that "the court erred in overruling defendants' demurrer to plaintiff's complaint," upon the ground that "it does not appear by the complaint that plaintiff is or was the owner of the land in dispute or is or was entitled to the possession thereof." He attempts to set forth in his complaint a specific deraignment of title, but does not aver any fact that he would be required to prove in order to recover, and cites the case of Castro v. Richardson, 18 Cal. 478, as sustaining that proposition. The proposition as stated by counsel and set forth above is perhaps the law and sustained by the case cited, but does not apply to this case. We do not allege a specific deraignment of title, but title is averred in general terms which is proper in an action of this kind. (Castro v. Richardson, 18 Cal. 478; Morton v. Folger, 15 Cal. 283.) But if plaintiff had alleged a specific deraignment of title, we contend that it would not have been necessary to prove the same, as defendants in their answer supply that proof by setting up the deed from the defendants to plaintiff, and thereby deraigned his title for him. Evidence to show that an absolute deed was intended as a mortgage must be clear and satisfactory. (Albany etc. Water Co. v. Crawford, 11 Or. 243, 4 P. 113; Penney v. Simmons, 99 Cal. 380, 33 P. 1121; Brison v. Brison, 90 Cal. 327, 27 P. 186; Ensign v. Ensign, 120 N.Y. 656, 24 N.E. 942; Mahoney v. Bostwick, 96 Cal. 53, 31 Am. St. Rep. 175, 30 P. 1020; Corbit v. Smith, 7 Iowa 60, 71 Am. Dec. 431; Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644; Ensminger v. Ensminger, 75 Iowa 89, 9 Am. St. Rep. 462, 39 N.W. 208; Peagler v. Stabler, 91 Ala. 308, 9 So. 157; Wilson v. Parshall, 129 N.Y. 223, 29 N.E. 297; Batcheller v. Batcheller, 144 Ill. 471, 33 N.E. 24; More v. Calkins, 95 Cal. 435, 29 Am. St. Rep. 128, 30 P. 583; Conway v. Alexander, 7 Cranch, 236; Flagg v. Mann, 14 Pick. 478.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

This is an appeal from a judgment of the district court for the county of Ada. This action is sui generis. It is not an action in ejectment, because it alleges neither possession, ownership, nor ouster. It contains none of the essentials of a complaint under the statute for quia timet. It alleges a contract between plaintiff and defendants by which plaintiff agreed to sell to defendants, for the sum of $ 800, to be paid within one year, with interest at the rate of one per cent per month, certain real estate situated in Ada county, Idaho. This contract is not, as appears, predicated upon any ownership or possession, right, or title in or by the plaintiff. To this complaint a general demurrer was interposed, which was overruled by the district court. This was error. The wisdom of Solomon, accentuated by the legal lore of Coke and Mansfield, could not devise a judgment which this complaint would support. The evidence, as appears by the record, shows this state of facts:

On the thirty-first day of December, 1891, the defendants were the owners of, and in possession of, a certain tract of land situated in Ada county, Idaho; and on that day they purchased of the plaintiff certain lands in Kansas, and, to secure him for the purchase price thereof, they executed to plaintiff a deed of said land in Ada county, taking back from plaintiff, at the same time, a contract or agreement, of which the following is a copy:

"This agreement, made and entered into this thirty-first day of December in the year of our Lord 1891, between Henry G. Wilson, of Boise City, Ada county, and state of Idaho party of the first part, and Ellen Hayes Thompson, of Boise City, Idaho party of the second part, witnesseth, that the said party of the first part, in consideration of the covenants and agreements on the part of the said party of the second part hereinafter contained, agrees to sell and convey unto the said party of the second part, and the second party agrees to buy, all that certain lot, piece, or parcel of land situated, lying, and being in the county of Ada and that state of Idaho and particularly bounded and described as follows, to wit: The northeast quarter of the northwest quarter of section No. 13, township 3, containing forty acres, more or less, according to government survey, for the sum of eight hundred dollars ($ 800), lawful money of the United States; and the said party of the second part, in consideration of the premises, agrees to pay to the said party of the first part the said sum of eight hundred dollars ($ 800), as follows, to wit, $ 800. One year after date, I promise to pay Henry G. Wilson, or order, the sum of eight hundred dollars, at Boise City, Idaho for value received, with interest at the rate of one per cent per month from date until paid. And the party of the second part agrees to pay all state, school, and county taxes or assessments, of whatsoever nature, that are or may become due on the premises above described. In the event of a failure to comply with the terms hereof by the party of the second part, the said party of the first part shall be released from all obligations, in law or equity, to convey said property, and the said party of the second part shall forfeit all rights thereto, and all payments made on said property; and the said party of the first part, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or her assigns, a good and sufficient warranty deed to said premises, free from all encumbrances; and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year first above written.

"[Seal] H. G. WILSON.

"Signed, sealed, and delivered in presence of O. L. Miller.

"Duly acknowledged on January 2, 1892, and recorded February 3, 1893, in the records of Ada county."

The character and purpose of the transaction is shown by the evidence of the defendant Ellen Thompson and S. L. Tipton.

Mr Tipton testifies as follows: "My name is S. L. Tipton. Am an attorney at law by profession. I know W. L. Thompson and Mrs. Thompson; I was their attorney during the months of November and December, 1891. I remember making arrangements with Mr. H. G. Wilson with regard to the transfer to defendants of certain Kansas property. That arrangement was: Mr. Wilson was to deed four lots in El Dorado, Kansas, to Mrs. Thompson. In consideration of that, he was to get a mortgage for $ 800 on forty acres of land which she owned over here on the Mesa; and, as my understanding was at the time, it was to be in the nature of a deed to him, and he was to give back a contract of purchase, in which, if she would pay the debt within a...