Azzalia v. St. Claire , 23 Utah 401 ( 1901 )

BASKIN, J.,

after stating the facts, delivered the opinion of the court:

Appellant’s counsel claim that under the undisputed facts, as a matter of law, the appellant is entitled to judgment.

It is clear, if the undisputed facts show that the title to the house passed to the appellant, she was entitled to a verdict in her favor; if, however, they show that the title did not pass to her, then the verdict is correct, and the judgment should be affirmed.

The lumber company could not convey an absolute title to the house, and by the terms of its agreement with appellant, bound itself to convey only its right, title and interest in the house.

The bill of sale made by the respondent to the lumber company, notwithstanding its terms, as it was given to secure the purchase price of the lumber sold to the respondent, was only a mortgage, and passed no title to the house. The company only acquired a lien upon the house under it.

In the case of Peck v. Girard F. & M. Ins. Co., 16 Utah 121, this court held that an absolute deed of real estate, to secure a debt, is in effect a mortgage, and does not pass the title to the land, but simply creates a lien on the mortgaged property.

That case was approved by us in Stevens Imp. Co. v. S. O. L. B. & I. Co., 20 Utah 267; 58 Pac. Rep. 843.

In Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1, the court said: “The cases are very numerous in our reports, and so familiar to the profession that we are surprised at the necessity, at this date, of referring to them at all. We will, however, cite a few of the cases showing that it has been the settled law for many years that a deed, though absolute in form, if given-as security for a debt, is, to all intents and purposes, both at law and in equity, a mortgage only,” and cited several cases which fully support that decision. This rule is sustained by an overwhelming array of decisions in other States.

In the case of Thompson v. Cheesman, 15 Utah 43-51-2, this court, said: “The statutes of this State provide that ‘a-mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.’ 2 Comp. Laws Utah, 1888, sec. 3474. A mortgage of real property, under the statutes of this State, does not. vest its title in the mortgagee. The mortgagor may convey the title subject' to the lien of the mortgagee to a third party.” Fields v. Cobbey (Utah), 62 Pac. 1020. See the numerous cases in support of this doctrine, cited in the case of Sidney Stevens v. S. O. L. B. & I. Co., supra.

At the time the note and agreement to convey, set out in the answer, was given the bill of sale was not cancelled, but still remained in force and was the only basis of the lumber company’s claim of ownership to the house, but as the bill of sale was.simply a mortgage and passed no title, or the right to disturb plaintiff’s possession of the house, except by foreclosure, and the plaintiff had the right notwithstanding the bill -of sale, to convey the title of the house subject to the lien of the mortgage to a third party, the only consideration of- the note and agreement was the balance dne on the account for lumber secured by the bill of sale.

As the plaintiff, by his tenant at will, remained continuously in possession, that possession was notice to the tenant and strangers of his rights, and if the lumber company had made an assignment of the note, and an absolute conveyance of the house to a third party, instead of an assignment of the note and its interest in the bill of sale, still its grantee would have acquired only the note and a lien on the house to secure payment of the note. If the note had been paid by the plaintiff before its assignment, an absolute deed of the house by the lumber company to the plaintiff would not have passed any title, for the lumber company had none to convey. The only effect of such a transaction would have been the cancellation of the mortgage and a satisfaction of the lien.

The defendant in this ease acquired no greater rights than the lumber company had under the. bill of sale.

It follows from the admitted facts that the verdict of the jury was correct, and that the trial court would have been warranted in instructing the jury to find for the plaintiff and assess his damages at such sum as the evidence in their opinion justified. Such being the case the other assignments of error are immaterial. Pool v. Southern Pacific Co., 20 Utah 210-231.

It is ordered that the judgment of the court below be-affirmed, and that the appellant pay the costs.

Miner, Q. J., and Bartch, J., concur.