Couts v. O'Neill

WORKS, J.

This action was instituted for the purpose of having two deeds, absolute in form, decreed to be mortgages. Judgment went for the defendant and the plaintiff appeals.

The transactions out of which the controversy arises were between the appellant and Richard 0 ’Neill, who, although of the same- name with the respondent, was the respondent’s predecessor in interest in the land which is the basic subject of the litigation, and who departed this life in 1910. Whenever, in the course of this opinion, Richard O’Neill, or 0 ’Neill, is mentioned, it will be understood that the reference is to the deceased person of that name and not to the respondent.

On November 4, 1895, Richard O’Neill promiséd to lend appellant the sum of $10,000, and, during the succeeding year, redeemed his promise by advancing to ..appellant various sums aggregating a little more than the amount named. On October 16 and November 12, 1896, appellant and his

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wife executed to O’Neill, in consideration of the loan, their two promissory notes, and they also, on the first-mentioned date, delivered to him their grant deed to certain lands in San Diego County. This instrument is one of those asked by appellant, in his complaint, to be decreed a mortgage, but the litigation is devoid of all interest as far as it is concerned, for it was beyond all question intended by the parties to be a mortgage and the trial court found that it was one.

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On October 10, 1901, within a week prior to the expiration of five years from the execution of the deed just mentioned, the appellant executed to Richard O’Neill a second deed, conveying the same property as the first, and it is upon the effect to be given to this second instrument that the appeal turns.

The appellant asks for a reversal of the judgment upon but two grounds, each presenting a question as to the sufficiency of the evidence to support the findings of the trial court. He contends, in the first instance, that the evidence fails to justify the finding that the deed of October 10, 1901, was an absolute conveyance and not a mortgage.

The evidence tending to support the finding, if any such there be, is, then, to be marshaled and considered. The appellant having failed to satisfy the obligation secured by the deed of October 16, 1896, O'Neill took up with Wm. J. Hunsaker, an attorney at law, on September 23, 1901, the matter of his relations with appellant. On the next day Hunsaker wrote Gouts: “Mr. O'Neill came up yesterday for the purpose of talking over his business with you. Inclosed you will please find copy of a letter I have this morning written him, which explains itself. Mr. O'Neill declines to take a new mortgage, but is willing to take a deed to the property and give you an option to purchase it within a year. I hope you will be able to find some way out of your present difficulties.” The letter to O'Neill, copy of which was inclosed in the letter to appellant, contained the following introductory statement: “In response to your request for a statement as to the amount due from Mr. Cave J. Gouts to you, and of the method by which you can take a deed to the property, and give Mr. Gouts an option to purchase it within a year from the date of the deed, I beg to say.” The letter then set forth a statement of figures and