Jeffers v. Hulen

FINCH, P. J.

Plaintiff as administrator of the estate of W. C. Jeffers, deceased, brought this action against the defendant to quiet title to ten acres of land in the possession of the defendant. The complaint is in the usual form and the answer, in addition to the customary denials, alleges that the defendant is, and for more than ten years prior to the commencement of the action has been, the owner and in possession of the land. W. C. Jeffers on the tenth day of September, 1908, executed an instrument in the form of an ordinary grant, bargain, and sale deed, caused it to be recorded, and on the next day delivered it to defendant. On the same day she gave him $250 in the form of a check. At other times thereafter she gave him sums of money aggregating more than $100. The plaintiff claims and attempted to prove that the instrument, in form a deed, was intended as a mortgage to secure payment of the $250 advanced by the defendant. The defendant contends that such instrument was intended as a deed of gift. The plaintiff replies that, if intended as a gift, it was an attempt to make a testamentary disposition by deed contrary to law.

W. C. Jeffers was a brother of the plaintiff and the defendant. He retained control of the land in controversy after the transaction related until December, 1910, when he left for Mexico, where he died in 1911.

[1]

The court found that the deed was intended as a mortgage. Is the finding supported by the evidence? A witness for the plaintiff testified that directly after the deed was made, the defendant said that W. O. Jeffers had borrowed $200 from her and had given the deed as security; that in 1913 she said, “I have got a deed to that ten acres and I can hold it but I won’t do it”; that in 1915 she said that all she required was her money back.

[592]

Another witness testified that in 1912 the defendant said that all she wanted was her money hack. Another witness stated that defendant said she did not want the place and she did not claim it, that all she expected “was to get her money hack she had loaned” her brother.

The defendant testified that when W. C. Jeffers handed the deed to her he said, “Here is your deed,” or something to that effect; that he said, “I don’t want you to take a mortgage because I am going here and there and getting into trouble and want you to have this property if anything happens to me”; that he told her, “If I am riding on a freight train and get killed I want you to have my property”; “he told me he deeded the property to me in ease anything happened he wanted me to- have it.” Another witness for the defendant testified that W. C. Jeffers said, “I made this deed over to Nettie so if anything goes wrong I want her to have it.” The defendant further testified that “one time he asked sister and I why we didn’t go up and paper my house, . . . then one time he asked me if I paid my taxes with reference to this place.”