Byrne v. Hudson

McFARLAND, J.

The transcript in this case is disjointed and confused; hut, as supplemented by a certificate of the clerk of the lower court filed here at the date of the oral argument, it is discoverable therefrom that this is an appeal hy plaintiff from an order or judgment, rendered August 36, 1897, and entered in the judgment-book October 6, 1897, ordering and adjudging that plaintiff is barred from all equity of redemption, “or other right,” to certain mortgaged premises described in the complaint, and dismissing the action. The parties to the action have produced complications by omissions to assert rights at the proper time and in the proper way, and by acts of such uncertain character as to create embarrassments which ordinary carefulness would have entirely avoided.

It is averred in the complaint, substantially, that plaintiff is the owner of certain described real property, and that defendant has a deed from plaintiff’s predecessor in interest which on its face purports to absolutely convey said real property to the defendant, but that said deed was intended as a mortgage to secure a loan of three hundred dollars, with interest; that she tendered said amount to the defendant and demanded a deed from him, and that defendant refused to accept this money, and claims that he owns absolute title to the premises. The prayer is that the conveyance to defendant “he adjudged to be a mortgage,” and that defendant be decreed to execute a conveyance to plaintiff of the property, and that upon his failure to do so the court appoint a commissioner to make such conveyance. The court found the facts to be as alleged by plaintiff. By the judgment it was decreed that upon the payment by plaintiff to defendant of the sum of three hundred and six dollars—the amount found to be due on the mortgage •—the defendant execute a deed conveying the premises to the plaintiff, and upon his failure to do so that the clerk be ap

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pointed a commissioner for that purpose. The judgment then proceeded as follows: “And if the plaintiff fails to pay to the said defendant the said sum of three hundred and six dollars, without interest, within tAventy days after written notice of the entry of the judgment, that then she he barred from all equity of redemption, or other right to said property.” The part of the judgment last quoted was unwarranted. It is definitely settled in this state that a deed absolute in form but intended as a mortgage is a mortgage, and conveys no title to the grantee named in the instrument. It has been declared that sections 2924 and 2925 of the Civil Code were intended to abrogate the rule stated in