Harp v. Harp

CHIPMAN, C.

Action to have a deed declared to he a mortgage, and that defendant reconvey on full payment of the debt and cost of conveyance. Certain special questions were submitted to a jury and were answered favorably to plaintiff, and upon the verdict and findings of the court plaintiff had judgment, from which and from the order denying his motion for a new trial defendant appeals.

Defendant is administrator of the estate of J. D. Harp, deceased, who in his lifetime was plaintiff’s father. It appears that having reached the age of seventy years, and wishing to free himself from the care of managing all his property, deceased deeded most of his land in separate parcels to his six children, reserving a portion for his wife at his death. This was about October, 1894. Plaintiff subsequently became indebted to his father in the sum of fifteen hundred dollars,

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and on October 19, 1896, conveyed Ms share of the land to Ms father, who died May 22, 1900. The jury found that the said deed was made under an agreement between the parties that it should be held as security for the payment of what plaintiff owed his father at the time, and that his father agreed to re-convey the land to plaintiff on payment to him of fifteen hundred dollars; that the deed was not an absolute conveyance ; and that it was not the intention of the parties that the indebtedness of plaintiff to his father should be satisfied by the deed. The court adopted the findings of the jury and made full findings of fact on all the issues in favor of plaintiff. The evidence as to the transaction was oral and consisted entirely of declarations of the deceased made shortly before plaintiff conveyed the land to his father and declarations made at different times after the deed was delivered prior to his death. These declarations were made to his children and to other relatives.

1. Appellant contends that where there is no direct proof of the terms of the agreement, and the case rests entirely on declarations of one of the parties, testified to after his death, a court is not warranted in setting aside a deed absolute on its face.' It is true that uncorroborated declarations, brought out after the death of the party making them, should be received with caution, and are under some circumstances, if not under all, weak and of dubious force; still, where admissible at all, they become evidence in the case, and we cannot say they should be entirely ignored or rejected in reaching a verdict or judgment. In this ease the fact that the declarations were sworn to by members of the family, whose interest, apparently, was in keeping the land in the estate as an asset in which they would share, together with the circumstances under which the witnesses testified that the declarations were made, tend very much to soften the rule, or at least to make its application less rigid. The evidence is sufficient to support the findings.