Kuhn v. Rumpp

By the Court, Belcher, J.: This action was brought to have two deeds absolute in form, made by the plaintiff and his mother to the defendant, [301]Webber, declared to be mortgages, and to be permitted to redeem therefrom.

It is alleged in the complaint that Webber conveyed the property to the defendant Rumpp without any consideration being paid therefor, and with full knowledge on the part of Rumpp at the time that Webber held it to secure an indebtedness due him, and was to reconvey it on payment of the indebtedness at any time within two years from the date of the second deed.

The answer admits that the deed of 1866 was intended as a mortgage, but denies that that of 1868 was so intended, and denies that the conveyance to Rumpp was without consideration or was received with notice that the property was held by Webber to secure the indebtedness.

The case was tried by the Court and judgment rendered for the defendants without findings. It is brought here on an appeal from the judgment and from an order denying a motion for new trial.

The only point made is that the judgment is contrary to the evidence, and after carefully reading the testimony we are of the opinion that the point is well taken. The testimony introduced by the plaintiff was certainly sufficient, if believed, to prove all the material allegations of the complaint, and we fail to see any substantial conflict between it and the testimony of the defendants. Conceding every fact stated by the defendants’ witnesses to be true, we still think the case fully made out for the plaintiff.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Chief Justice Wallace did not express an opinion.