Brandt v. Thompson

McFarland, J. This action was tried upon the second amended complaint. What the preceding complaints were does not appear. The second amended complaint presents simply an action to quiet title. It is averred that plaintiff is, and for a long time has been, the owner in fee and in the actual possession of certain described land; that defendants claim and assert an interest of some kind in said land; and that defendants, or either of them, have no right, title, or interest whatever in said land. The prayer is, that defendants be required to set forth the nature of their asserted claims, and that it be decreed that they have no right, title, or interest in said land, and that plaintiff has an absolute title thereto. The defendant Herman Brandt, who is plaintiff’s brother, made no defense.

[460]Defendant Thompson filed an answer, in which it is denied that since March 4, 1885, plaintiff has been the owner or in possession, or entitled to possession, of the said land; and in which it is averred that from said March 4, 1885, to April 23,1888, the defendant Herman was the owner in fee and in possession of said land; that on April 23d, Thompson held a mortgage on said land, amounting at that time, principal and interest, to $13,679.50, and that said Herman proposed to him that if he would satisfy said mortgage, and pay said Herman the sum of $6,200, the latter would sell and convey said land to him (Thompson); that he accepted the proposition, released said mortgage, paid said $6,200 to said Herman, and that the latter, on said twenty-third day of April, 1888, conveyed said land to Thompson, since which time he has been the owner in fee and entitled to the possession of said land.

The court below found that on March 3,1885, plaintiff was owner in fee and in the possession of said land, and has ever since been in possession, holding the same adversely to defendant and all the world, and that neither of the defendants has been in possession of the same or any part thereof; that on said March 3,1885, plaintiff borrowed of Thompson eight thousand five hundred dollars, and to secure the same, executed to him a mortgage on said land; that on the next day (March 8th) plaintiff executed and delivered to his said brother Herman, defendant herein, a deed of conveyance of said land, absolute in form, but intended only as security for six thousand dollars, borrowed by plaintiff from said Herman; that afterwards, on March 19, 1888, Thompson “ paid to the said Herman Brandt the said sum of six thousand dollars ($6,000), which he, the said Herman Brandt, had loaned to plaintiff, together with two hundred dollars ($200) interest, and satisfied on the records the said mortgage of eight thousand five hundred dollars from plaintiff to Thompson ”; and that on said March 19,1888, said Herman made a deed of conveyance of said land to said Thompson. It is found, also, that at the time of said last