Meeker v. Shuster

BUCKLES, J.

This is an action to have a certain deed declared to be a mortgage and to foreclose the same.

The defendants were in possession of the land mentioned in said deed while the legal title thereto was in one Aaron Barnes.

The complaint alleges that on December 3, 1883, the said Barnes entered into a contract and bond with the Shusters whereby he obligated himself to convey by bargain and sale deed said land to the Shusters on or before December 3, 1893, upon the Shusters paying to him the sum of $11,000 in sums not less than $100 and interest at the rate of nine per cent per annum. This contract and bond was duly recorded on the same day it was made. On October 5, 1892, the Shusters still owed $8,440 to said Barnes. To enable them to pay this debt the plaintiff loaned them $8,440. The money was paid over to Barnes, the Shusters released and satisfied the contract and bond on the records and requested the said Barnes to, and he did make, execute and deliver to the said plaintiff a deed to said land as security for the payment to him by said Shusters the said sum of $8,440, with interest thereon at the rate of eight per cent per annum, and the plaintiff gave the Shusters his bond for a deed for said land, in which he agreed to convey said land to the Shusters on or before ten years from October 5, 1892, upon the payment to him of the $8,440, with interest as aforesaid, by the said Shusters. That no part of the principal or interest of said debt was ever paid and that at the time the suit was commenced there was due and unpaid the sum of $18,513.26. That in a suit in ejectment in which the plaintiff and the defendants were the same as in this action, tried in the superior court of Sonoma county, a judgment was duly rendered and entered on December 14, 1894, by which it was adjudged that the payment of the said sum of $8,440 by plaintiff to the Shusters, and by them to said Barnes, was a loan by plaintiff to said defendants and that the deed executed and delivered by

[296]

Barnes to plaintiff was a mortgage to secure the payment of said sum. Judgment was for defendants. An appeal was taken to the supreme court and the judgment affirmed. The answer contains a specific denial and a setting forth the transaction of plaintiff paying over the $8,440 and the circumstances of Barnes making the said deed and the plaintiff making the said contract and bond to the Shusters, claiming in effect that such transaction did not constitute a mortgage but a sale and conveyance of title of said land to the plaintiff, and also pleads bar under the statute of limitations.