Cline v. Robbins

McFarland, J. This is an appeal by defendant from a judgment in favor of plaintiff.

It is averred in the complaint that on November 5, 1890, plaintiff executed a certain deed of conveyance of certain property known as the Cline Water Works and appurtenances to the defendant: that while said deed upon its face conveyed the title of said property to defendant, yet it was intended by the parties to be a mortgage as security for the payment by plaintiff to defendant of the sum of seven hundred and eighty-five dollars, with interest at nine per cent per annum, and that it was understood between said parties that upon the payment of said sum of money and interest the indenture should become void, and defendant should reconvey the property to plaintiff. It is further averred that defendant wrongfully took possession of said property, and has received the income thereof, which should be applied to the payment of the said averred mortgage. It is further averred that said income, so received by defendant, is more than sufficient to satisfy the amount secured by said mortgage aforesaid, but that, if upon an accounting there should be found any balance due defendant from plaintiff, plaintiff offers to pay the same to defendant. It is prayed that the said deed be declared to be a mortgage; that an accounting be had between the parties; that if any balance be found due from either [584]party to the other judgment should be rendered therefor, and that plaintiff have such other and further relief, etc. In the answer it is denied that said deed was intended as a mortgage; and it is averred that it was intended as an absolute conveyance of the fee in satisfaction of the debt which plaintiff owed to defendant. It is further averred in the answer that the income of the property received by defendant does not equal the said sum of seven hundred and eighty-five dollars and interest, and that, if the court should decree the deed to be a mortgage, there would still be a large amount of money due defendant.

Certain issues were submitted to a jury, who found that the said deed was intended by the parties to be a mortgage; that the income received by defendant was not sufficient to liquidate the said sum of seven hundred and eighty-five dollars, with interest, and that there is a balance due defendant from plaintiff of five hundred and eighty-three dollars. The court adopted these findings of the jury, and also made other findings.

The most important question in the case is whether or not the evidence was sufficient to warrant the finding that the deed was intended as a mortgage. It is, indeed, questionable whether the evidence is sufficient to support that finding; for the plain language of a written instrument should not be varied by parol testimony, even under the established rule that a deed may be shown to be a mortgage, unless such evidence is quite strong and satisfactory. However, in looking over the whole testimony introduced, we are not prepared to say that the court and jury abused their discretion in finding that there was evidence sufficient to establish the fact that a mortgage was intended.