Woods v. Jensen

Action to Quiet Title—Conveyance in Satisfaction of Mortgage—Recitals—Burden of Proof as to Intention.—In an action to quiet title, where the plaintiffs relied upon a conveyance in fee simple made by the defendant to the plaintiffs, which recited that it was made in consideration of the satisfaction and cancellation of a mortgage from defendant to the plaintiffs, and an additional sum of fifty dollars, and that it was not made for the purpose of securing money due, but was executed and delivered for the purpose of conveying the land to the plaintiffs, their heirs and assigns, by a title in fee simpie absolute, the burden of proof is not upon the plaintiff to Show that such deed was not intended as a mortgage, but is upon the defendant to show by clear and convincing evidence that- the deed was so intended.

Id.—Conflicting Evidence as to Intention—Findings of Jury—Appeal. Where there is conflicting evidence as to whether the deed was or was not intended as a mortgage, the findings of the jury that the plaintiffs were the owners of the land in fee simple, and that the defendant owned no interest therein, are warranted by the evidence, and cannot be disturbed upon appeal.

Id.—Conditional Agreement to Reconvey—Permission to Retain Possession.—The mere giving to the defendant by the plaintifis of a conditional agreement to reconvey the land on or before a certain date, upon payment of a specified sum of money, and if not paid the agreement should become void and cancel itself, together with a verbal agreement for retention of possession by the defendant until that date, does not show the transaction to be a mortgage, in the absence of sufficient proof that it was so intended.

Id.—Evidence—Conversation with Defendant’s Attorney—Agency —Making of Contract.—Evidence is admissible to show a conversation between one of the plaintiffs and the attorney for the defendant, to whom the defendant, who spoke but little English, referred the plaintiff, when he was pressed for payment of the mortgage; and such evidence is not subject to the objection that plaintiff’s attorney had no authority to bind the defendant by contract, where it appears that such conversation was merely preliminary, and that the transaction was not consummated until a meeting of the plaintiff and of the defendant and his attorney, who then acted as interpreter for the defendant, and that the defendant thereafter executed the deed.

Id.—Temporary Pledge of Mortgage—Subsequent Satisfaction—Title not Affected.—The fact that the note and mortgage were temporarily pledged when the deed was executed, and were redeemed and canceled, and satisfaction of the mortgage entered upon the record, several days thereafter, does not affect the title acquired by the deed.

Id.—Cancellation Written Upon Rote—Secondary Evidence.—Secondary evidence of the plaintiff that he wrote the words “canceled and paid” on the back of the note, is sufficiently warranted by proof that he put the note and mortgage in his pocket with those words on the note, to be .delh'erecl to the defendant or his attorney, and thought he had given them to the attorney, and could not since find them, though he had looked everywhere among his papers. The fact that he did not expressly state that he had looked in his pocket, the question not having been asked him, cannot affect the sufficiency of the foundation laid.