De Carrion v. De Aguayo

COOPER, C. Judgment was entered in the court below for defendants. Plaintiff made' a motion for a new trial, which was denied. This appeal is from the judgment and order denying the motion.

The complaint is for the recovery of the possession of the land's described therein, and contains the usual allegations in ejectment. The answer, in addition to a denial of the allegations of the complaint, alleges affirmatively that defendants are, and were at all the times therein named, the [717]owners and seised in fee of said lands; that on the fifteenth day of June, 1892, they executed and delivered to one Saturnino Carrion, since deceased, and vdio was the husband and grantor of plaintiff, what purported to be a grant, bargain and sale deed of the premises, which deed was recorded; that said deed, although absolute in form, was intended to be, and was in fact, a mortgage to secure the payment of $1,000 to plaintiff’s grantor, with legal interest thereon. It was admitted that, unless the said deed was in fact made as a mortgage, the plaintiff would be entitled to judgment. This was the only issue in the ease. The court found: “That the said instrument though in the form of a deed absolute, was executed and delivered to said Saturnino Carrion as, and was intended to be, a mortgage to secure the payment of one thousand dollars, with interest at the rate of seven per cent per annum from the seventeenth day of May, 1892.” It is claimed that the evidence is insufficient to sustain the above finding, and this is the sole question to be here determined. We have carefully examined the evidence, and, in our opinion, it amply supports the finding. Without giving the evidence in detail, it is sufficient to state that there is evidence of the following facts and circumstances: On the 17th of May, 1892, there were two mortgages existing against the property of defendants described in the complaint; one in favor of one Hilsey for $700, and one in favor of one Frankel for about $180. That on said day the plaintiff’s grantor applied to one Jess for a loan of $1,000, stating that defendants owned some property on which there were mortgages, and that; as the mortgagees desired their money, defendants wanted to pay off the two mortgages, and deed him the property. Jess accordingly loaned the plaintiff’s grantor $1,000 upon his own promissory note. Defendants appeared at the bank of which Jess was cashier, and the two mortgages were taken up, and assignments of them made to plaintiff’s grantor. The balance of the $1,000, after paying the two mortgages, was left in the bank, and afterward paid out either to Frankel or to plaintiff’s grantor. Defendants did not receive any of it. The mortgages so assigned to plaintiff’s grantor have never been satisfied of record, nor have the notes been delivered up or canceled. The money was borrowed from plaintiff’s grantor. That the deed was in