Rogers v. Jones

Vanclief, C. Action to foreclose an alleged mortgage. The instrument alleged to be a mortgage is in form an absolute conveyance of forty acres of land, dated February 11,1885, but it is averred in the complaint that at the time it was executed, it was understood and agreed by the parties that it was to have the effect of a mortgage, merely to secure the payment of future advances of money by plaintiff, to and for the use of the defendant, not to exceed $750. It is further averred that, in accordance with such agreement, the plaintiff-paid for and at the request of the defendant, to different persons, [81]sums of money amounting in the aggregate to $267.72, which the defendant promised to repay to plaintiff, with interest at one per cent per month. The prayer is, that the mortgaged premises be sold, etc.

The answer denies that it was agreed or understood that the instrument should be considered a mortgage, or that it was executed as security for any debt; denies three items of the alleged indebtedness, amounting to> about one hundred dollars; and denies that defendant promised to pay interest at any rate.

The court found for the plaintiff upon all the- issues, and rendered judgment accordingly.

The defendant appeals from the judgment, and also from an order denying his motion for a new trial.

1. The court did not err in admitting in evidence the written memorandum, signed by the parties contemporaneously with the execution of the deed, of which the following is a copy: —

“ Memorandum, made February 11, 1885.

“ David Jones deeds to me 40 acres. Still due the state, $52.

“ J. T. Campbell is to deed me 120 acres, and I am to pay $130 (or thereabouts) to Campbell.

“ Then I am to borrow on said 160 acres about $750, and I am to use said money for Jones.

“ 1st. Pay to- J. J. Scrivner, attorney, 320 California Street, San Francisco, $500.

“ 2d. J. T. Campbell, attorney, Santa Rosa, California, $130.

“3d. Pay taxes of E. Davis and D. Jones, $32.77

“4th. Pay balance to state on said 40 acres, $52.