Wright v. Rosebaugh

• Decision Date: 19 July 1928
• Docket Number: 5158
• Citation: 269 P. 98,46 Idaho 526
• Parties: MARY A. WRIGHT, Formerly MARY A. DORE, Appellant, v. W. O. ROSEBAUGH, Administrator of the Estate of JERRY L. DORE, Deceased, and JOHN C. DORE, Respondents
• Court: Idaho Supreme Court

269 P. 98

46 Idaho 526

MARY A. WRIGHT, Formerly MARY A. DORE, Appellant, v. W. O. ROSEBAUGH, Administrator of the Estate of JERRY L. DORE, Deceased, and JOHN C. DORE, Respondents

No. 5158

Supreme Court of Idaho

July 19, 1928

DEED-WHEN A MORTGAGE-PROOF REQUIRED-INTENT OF PARTIES-SUBSISTING DEBT.

1. A deed absolute in form may be shown to have been intended as a mortgage, whether or not deed is warranty deed, and whether it is accompanied by condition or matter of defeasance expressed in deed or contained in separate instrument.

2. Whether or not deed absolute in form was a mortgage is mixed question of law and fact, to be determined from all the evidence, written and parol, and in determining it all facts and circumstances attending transaction should be considered.

3. Fee-simple title is presumed to pass by grant of real property, and, independent of proof, presumption arises instrument is what it purports on its face to be.

4. In order to justify trial court in declaring a deed purporting to convey land absolutely in fee simple was intended as a mortgage, evidence must be clear, satisfactory and convincing.

5. Determination of trial court, relative to whether deed absolute in form constituted a mortgage, on conflicting or contradictory evidence, is not open to review in appellate court.

APPEAL from the District Court of the Eighth Judicial District, for Boundary County. Hon. W. F. McNaughton, Judge.

Action to quiet title to real property. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondent.

Ezra R Whitla, for Appellant.

The form of the instrument is not material. The fact that it was given as security is the whole proposition. Given as security it remains a mortgage and can never be converted into a deed transferring title.

"Where an instrument in writing in the form of a deed of conveyance is executed and delivered as security for a debt, such instrument becomes a mortgage and not a deed notwithstanding the form of the instrument. . . .

"If the instrument was executed and delivered as security for a debt, then the instrument becomes a mortgage and is not a deed, notwithstanding the fact that the deed is absolute in its terms." (Bergen v. Johnson, 21 Idaho 619 123 P. 484.)

In Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90, this court, quoting from an early Kansas decision by Judge Brewer, said: "The test is the existence or nonexistence of a debt. An equity looks behind the form to the fact."

S.E. Henry, for Respondents, cites no authorities on points decided.

BUDGE, J. Wm. E. Lee, C. J., and Givens and T. Bailey Lee, JJ., concur. Taylor, J., disqualified.

OPINION

BUDGE, J.

Action brought by appellant to quiet title to certain real property, of which she claims to be the owner. Appeal from judgment dismissing complaint.

On January 3, 1918, Jerry L. Dore deeded the property in controversy to appellant, who was then his wife. On October 11, 1919, Dore and his wife executed a deed to the property to F. A. Shultis, the named consideration being $ 500; it appearing by oral evidence adduced at the trial that the property was being sold to one Sherman, who signed a note for the amount of the purchase price and delivered the note to Shultis, cashier of the First National bank of Bonners Ferry. The deed was made out to Shultis to be held by him until the payment by Sherman of the entire purchase price, payments thereon to be made by instalments, and after which Shultis was to deed the property to Sherman. After Sherman had paid some $ 375 on the note and had lived on the property and paid taxes thereon for about three years, he agreed to sell the property to Dore for the same amount he had contracted to purchase it; and, accordingly, Shultis, on May 15, 1922, executed a warranty deed therefor to Dore, the named consideration being $ 500. Appellant and Jerry L. Dore were divorced on February 8, 1922, and on November 1, 1924, Dore died, leaving surviving him as his only heir, respondent John C. Dore. Respondent Rosebaugh is the administrator of the estate of Jerry L. Dore.

It is contended by appellant that the evidence shows that the deed to Shultis was a mortgage, and reliance is placed upon the provisions of C. S., secs. 6358 and 6359, to the effect that every transfer of an interest in property other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage; and the fact that a transfer was made subject to defeasance on a condition may, for the purpose of showing such transfer to be a mortgage, be proved (except as against a subsequent purchaser or encumbrancer for value and without notice), though the fact does not appear by the terms of the instrument.

The rule is well established and recognized by numerous cases in this state and elsewhere that a deed absolute in form may be shown to have been intended as a mortgage. This principle is a rule of property, and is recognized both at law and in equity. It applies whether or not the deed is a warranty deed, and whether the deed is accompanied by a...