Mahoney v. Bostwick

He Haven, J. — The complaint in this action alleges, among other matters, that in August, 1884, plaintiff was the owner of the land therein described, and at that date he executed to one William Inglis a deed thereof, as security for money then advanced by said Inglis to pay off a debt due from plaintiff to the Stockton Savings and Loan Society, and which indebtedness was a lien on said land; that, upon February 5, 1885, the defendant, by agreement with plaintiff, paid to said Inglis the amount then due from plaintiff to Inglis, and plaintiff, in consideration thereof, caused said Inglis to convey to defendant the land which had theretofore been conveyed by plaintiff to Inglis, and that at the time it was agreed between plaintiff and defendant “ that said deed, though an absolute conveyance on its. face, .... should be treated and considered as a mortgage of said lands,” to secure the payment to defendant of the amount so paid by him to Inglis, at the request of plaintiff.

The complaint further alleges, that thereafter the defendant repudiated the agreement under which he re[57]ceived the deed from Inglis, and claimed that the same was an absolute conveyance; and on October 6,1885, he ousted plaintiff from the possession of said land, and has ever since withheld the possession thereof from plaintiff, and has kept and enjoyed all the rents and profits thereof.

The prayer of the complaint is, that the deed from Inglis to defendant be declared a mortgage to secure the repayment of the money loaned by defendant to plaintiff, and the interest thereon; and that the court ascertain the value of the rents and profits of the land while in possession of defendant, and credit the amount thereof upon the indebtedness which the deed was intended to secure, and that upon payment of the balance due defendant, he be required to convey such land to plaintiff.

The answer of defendant contained a specific denial of all these allegations, and also pleaded a former judgment in an action between the same parties as a bar.

The court below found all of the allegations of the complaint to be true, and also that plaintiff’s cause of action was not barred by the former judgment referred to in the answer, and thereupon gave judgment in accordance with the prayer of the complaint, in which judgment the defendant was charged with the rental value of the land during the time he was in possession of the same, and was not allowed the value of certain improvements which he had placed thereon, or the amount of certain money advanced by him to plaintiff for the purpose of carrying on and improving the farm.