Winters v. Swift

• Decision Date: 19 February 1884
• Citation: 3 P. 15,2 Idaho 61
• Parties: WINTERS v. SWIFT
• Court: Idaho Supreme Court

3 P. 15

2 Idaho 61

WINTERS v. SWIFT

Supreme Court of Idaho

February 19, 1884

CONVEYANCE-DEED-MORTGAGE-CONSTRUCTION OF CONTRACT.-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 to A a portion of the same property at a stipulated time, although given on the same date and for the same price, if not intended to be a mortgage or security for money by the parties themselves and not appearing to be such on the face of the instrument, will be held to be an absolute bargain and sale, and not a mortgage.

CONTRACT-CONSTRUCTION-INTENTION OF PARTIES-EVIDENCE.-The intention of the parties is to be ascertained-1. From the instruments themselves; 2. From parol testimony, and, when ascertained, will be carried out by the courts.

LEX LOCI-QUESTION OF USURY.-The question as to whether a note which is made and delivered in Utah is usurious or not is to be decided by the laws of Utah.

APPEAL from District Court, Alturas County. Affirmed.

Affirmed.

F Ganahl, L. Vineyard and D. E. Waldton, for Appellant.

The law declares this transaction a mortgage. If not a mortgage at law, the presumption is in equity, it will be so held. That if there be a doubt as to the nature of the transaction, and the relation of debtor and creditor existed at its inception the doubt will be solved in favor of the debtor and the transaction held to be a mortgage. At law an absolute deed and separate defeasance or agreement to reconvey, executed at the same time, amount to a mortgage. (Colwell v. Woods, 3 Watts, 188; Jaques v. Weeks, 7 Watts, 261; Huling v. Drexell, 7 Watts, 126; Rankin v. Mortimere, 7 Watts, 372; Kerr v. Gilmore, 6 Watts, 405; Brown v. Nickle, 6 Pa. St. 390; Wilson v. Shoenberger, 31 Pa. St. 295; Reitenbaugh v. Ludwick, 31 Pa. St. 131; Bayley v. Bailey, 5 Gray, 505; Haines v. Thomson, 70 Pa. St. 434; Sweetzer's Appeal, 71 Pa. St. 264; Taylor v. Weld, 5 Mass. 109; Kelleran v. Brown, 4 Mass. 443; Carey v. Rawson, 8 Mass. 159; Erskins v. Townsend, 2 Mass. 493, 3 Am. Dec. 71; Newhall v. Burt, 7 Pick. 156; Stocking v. Fairchild, 5 Pick. 181; Newhall v. Pierce, 5 Pick. 450; Rice v. Rice, 4 Pick. 349; Eaton v. Whiting, 3 Pick. 484; Trull v. Skinner, 17 Pick. 213; Lanfair v. Lanfair, 18 Pick. 299; Peterson v. Clark, 15 Johns. 205; Clark v. Henry, 2 Cow. 324; Bloodgood v. Zeily, 2 Caines Cas. 124; Robinson v. Cropsey, 2 Edw. Ch. 138; Robinson v. Cropsey, 6 Paige, 480; Brown v. Dewe, 1 Sand. 56; Slee v. Manhattan Co., 1 Paige, 48; Dry v. Dunham, 2 Johns. Ch. 189; Henry v. Davis, 7 Johns. Ch. 40; Barton v. May, 3 Sand. 450; Palmer v. Gurnsey, 7 Wend. 248; Baker v. Thrasher, 4 Denio, 493; Murphy v. Calley, 1 Allen, 107; Polhemus v. Trainer, 30 Cal. 687; Gay v. Hamilton, 33 Cal. 686; 1 Jones on Mortgages, sec. 244.) "When the conveyance, and the agreement to reconvey, are on their face of even date, the transaction is necessarily a mortgage, and parol evidence of a different understanding by the parties will not be received to convert it into a conditional sale. When the two instruments are of different dates, such evidence is admissible." (1 Jones on Mortgages, sec. 248; Kerr v. Gilmore, 6 Watts, 405; Brown v. Nichol, 6 Pa. St. 390.) The continued possession of the grantor is also evidence tending to show that the conveyance was a mortgage. (Spencer v. Weatherly, 1 Jones, 328; Ruffier v. Womach, 30 Tex. 332; Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671; Steel v. Black, 3 Jones Eq. 427; Streater v. Jones, 3 Hawks, 423; Sellers v. Stalcup, 7 Ired. Eq. 13; Kemp v. Earp, 7 Ired. Eq. 167; Thompson v. Banks, 2 Md. Ch. 430; Crews v. Thundergill, 35 Ala. 334; Daubenspeck v. Platt, 22 Cal. 330.) Inadequacy of price is also a circumstance tending to show that the transaction is a mortgage rather than a sale. (Spencer v. Weatherly, 1 Jones, 328; Davis v. Stonestreet, 4 Ind. 101; Wilson v. Patrick, 34 Iowa 362; Trucks v. Lindsey, 18 Iowa 504; West v. Hendrix, 28 Ala. 234; Overton v. Bigelow, 3 Yerg. 513; Gibbs v. Penny, 43 Tex. 560.) The McCormick note secured by the trust deed (Exhibit "L") was executed by Jaikowski, at Ketchum, Idaho territory, and not in Utah; the property affected by and embraced in the trust deed is situated in Idaho. The lex loci contracts, and lex rei situs are the laws of Idaho, and under them the contract and security are alike void as to the interest. (2 Parsons on Contracts, pp. 571-575; 1 Jones on Mortgages, 656, 661, 662.) This point, however, was not properly before the court below and should not have been decided, for it only became material on the question of accounting and the amount to be paid on redemption after the court had decided that the transaction was a mortgage, and having decided it to be a conditional sale, this question ceased to be material.

James H. Beatty, for Respondents.

The McCormick note of $ 6,000 was finally executed and delivered in Utah territory (228), and the stipulated interest is legal in Utah (Finding 28, p. 102). The note was neither void nor usurious. (Miller v. Tiffany, 1 Wall. 309; 2 Kent's Commentaries, 460.) Appellant does not in his bill show, nor has it in any way appeared, that he ever offered, or is ready to redeem, or to pay what the court may order, or to comply with its decrees, but instead, with much assurance, asks the court to declare void all of Jaikowski's debts which Swift had assumed and paid. Instead of doing equity, while pretending to seek it, appellant asks the court to do a most iniquitous act. His bill does not entitle him to relief. (1 Daniell's Chancery Practice, 188, 189; Story's Equity Pleading, sec. 187.) Respondent insists that beyond question the law is: 1. That when a deed is absolute and unconditional in form, and there is no other instrument so referring to or modifying it as to constitute a defeasance thereto, the former must, in all cases, be held an absolute conveyance, until shown otherwise by evidence aliunde the instruments; 2. That to show it otherwise the actual intention of the parties is the test; and 3. Such intention must be shown by evidence so clear as to leave no doubt. (Holmes v. Grant, 8 Paige, 243, 257; Glover v. Payn, 19 Wend. 519; Flagg v. Mann, 14 Pick. 467; Hughes v. Sheaff, 19 Iowa 343; Robinson v. Cropsey, 2 Edw. Ch. 138; Conway v. Alexander, 7 Cranch, 235; People v. Irwin, 14 Cal. 428; Henley v. Hotaling, 41 Cal. 22-28; Page v. Vilhac, 42 Cal. 78; Farmer v. Grose, 42 Cal. 171-173; Turner v. Kerr, 44 Mo. 429; Pitts v. Cable, 44 Ill. 103; Hanford v. Blessing, 80 Ill. 189, 191; Bingham v. Thompson, 4 Nev. 232; 1 Jones on Mortgages, secs. 258, 260, 261.) To constitute a mortgage, in addition to the mortgagor's right of redemption, the mortgagee must have the right of enforcing the collection of his debt against the mortgagor as well as the property. (7 Cranch, 237, supra; 41 Cal. 28, supra; 42 Cal. 173, supra; 2 Edw. Ch. 144, supra; 14 Pick. 478, supra; 44 Ill. 106, supra; 1 Jones on Mortgages, sec. 264.) When the instruments show a conditional sale, or an absolute sale with option of repurchase as in this case, the terms of repurchase must be complied with, and if not the party will be without relief. (41 Cal. 27; 44 Mo. 433; 19 Iowa 344; 1 Jones on Mortgages, secs. 264, 267, 258.)

MORGAN, C. J. Prickett and Buck, JJ., concurred.

OPINION

MORGAN, C. J.

It appears from the evidence and the findings of the court in this cause that Wilhelm Jaikowski was the owner and in possession of two-thirds interest in the North Star mine and one-half interest in the American Eagle mine, both situated in Warm Spring district, Alturas county, Idaho; that one Riley was the owner of the one-third of the North Star mine and one-half of the American Eagle; that in working said mine Jaikowski, prior to the seventh day of September, 1881, had become indebted to Pinkham & Leonard in the sum of $ 2,082.98, for which he had given his note and mortgage on one-third of the North Star mine, dated, respectively, January 7, 1881; that he was then also indebted to J. O. Swift & Co., a firm composed of J. O. Swift and T. E. Clohecy, both defendants herein, to the amount of between three and four thousand dollars; that to pay off said indebtedness, and obtain means to work said mines, Jaikowski, about the 1st of March, A. D. 1881, employed defendant Clohecy to go to Salt Lake City and procure a loan of $ 6,000; to enable Clohecy to secure said loan, Jaikowski executed to said Clohecy a note for $ 6,000, with place where payable and name of payee in blank, dated March 1, 1881, and due in five months from date; he also executed to Clohecy a power of attorney to sell or mortgage his interest in said North Star mine; that Clohecy thereupon went to Salt Lake City, and secured a loan from McCormick & Co., in the sum of $ 6,000; that Clohecy delivered to said McCormick & Co. the said promissory note, properly filled out and indorsed by him; that he also, for the purpose of securing said note, executed a trust deed conveying Jaikowski's interest in the North Star mine to William H. Greenhow and George A. McCormick, with power to them or the sheriff of the county to sell said interest on default of payment of the debt. With the $ 6,000 thus obtained, Clohecy paid off various items of indebtedness due from Jaikowski, including the debt due Pinkham & Leonard.

During the summer of 1881 Jaikowski made various attempts to sell his interest in the North Star mine, employing Clohecy and others to aid him in effecting said sale. The mine was not sold. The latter part of August Jaikowski went to Salt Lake the note and trust deed were coming due September 1, 1881. Jaikowski attempted to get further time on the $ 6,000 note, which was refused by McCormick & Co. About the 1st of September J. O. Swift, defendant,...