Beroud v. Lyons

Given, J.

I. Upon filing his answer the defendant moved the' court to transfer the case to the equity docket, which, motion was overruled. The plaintiff moved to strike certain paragraphs of the answer, which motion was sustained as to said paragraphs nine and one-half and ten. The appellant complains of these rulings, and, as they involve the same question, they are considered together. If the case were transferable both rulings were wrong; but if not transferable both were correct. This is an action to recover specific personal property, brought under section 8225 of the Code. Section 3226 provides that “the action shall be by ordinary proceedings, but there shall be no joinder of any cause of action not of the same kind, nor shall there be allowed any counterclaim. ” The controlling issue was whether the plaintiff was entitled to the immediate possession of the property at the time of bringing her action. She admits the execution of the chattel mortgage under which the defendant held the property, but alleges that it was fully paid and satisfied by the execution of the warranty deed, and that the defendant purchased said mortgage and note with full knowledge thereof. The issues involved therefore, were whether said warranty deed was executed in satisfaction of this chattel mortgage, and, if so, whether the plaintiff purchased the note and mortgage with knowledge of that fact. There was no equitable issue involved, nor was the defendant entitled to have foreclosure, of the mortgages in this action. If the written instrument executed by the plaintiff and her husband was not obtained by fraud and false representation, and was a valid instrument, it was an acknowledgment on the part of the plaintiff that the warranty deed was in fact a mortgage, and a consent that Kentner might transfer the same. It is contended that these issues involved the right of the defendant to foreclose the mortgage, and the amount due thereon, and hence that this action was a transfer of the proceeding to foreclose to the district court, as provided in section 3317 of the Code, and was therefore cognizable in equity. We do hot think the bringing of this action had the effect of transferring the proceeding of foreclosure to the district court. It is plain that under said sections 3225 and 3226 the controlling question to be determined is the plaintiff’s right to possession, and that the defendant is entitled to no relief in such an action except judgment for the return of the property and the value of his right therein where it has been wrongfully taken from him by the writ. There was no error in the rulings of the court upon these motions.

II. On the trial the plaintiff testified in substance as follows: That at the time of executing the warranty deed to Kentner, he agreed in consideration therefor to pay these several claims, including the one against the personal 'property in question, all of which amounted to over seventeen hundred dollars; that if the plaintiff and her husband would repay that sum to Kentner by the first of January following, he would deed the land back to them, and that if they did not so redeem the place he would give up all of said mortgages, and keep the land; and that they had not redeemed the place. The appellant moved to strike this testimony, and complained of the overruling of Ms motion, contending that there was no issue upon the question whether or not the deed was a mortgage and that, if there was such an issue, a verbal agreement made prior to the execution of the deedis not competent. We do not understand the appellee to admit, either in pleading or in evidence, that the deed was but a mortgage. Her claim is that it was executed in consideration of Kentner’s agreement to satisfy and cancel this chattel mortgage claim and the other claims mentioned, and that Kentner agreed to resell and reconvey to them upon their paying to him the amount of these claims by the first of January, 1890.

The appellant’s claim is that the deed was not absolute, but conditional; hence there was an issue as 2. Conveyance by deed absolute as security: evidence. to whether the deed was absolute or conditional. It is conceded that facts or circumstances may be proven to snow that a deed absolute in form was only given as a mortgage, but it is contended that the appellee’s testimony as to the agreements was not a statement of facts and circumstances. Certainly the making of such an agreement is a fact and a circumstance ■ attending the execution of the deed from which its character may be gathered with greater certainty where the parties have not expressed their purpose in the form of an agreement. We think the admission of this testimony was within the rule laid down in the several cases cited.

The warranty deed was executed July 19th. Testimony was admitted, over the appellant’s objection, as to conversations and negotiations between Mr. Kentner and the appellee on the day preceding, with respect to the terms and conditions upon which this conveyance was' to be made. The appellant contends that this evidence was inadmissible, because of the parties having ultimately reduced their agreements to writing. Whether we view this evidence as tending to show facts and circumstances from which to find that the deed was but a mortgage, or as tending to establish an agreement to resell and reconvey, it was alike admissible. The appellant cites cases recognizing tbe right to show facts or circumstances that would establish the absolute deed to have, been given only as a mortgage; hence, so far as this evidence tended to show such facts or circumstances, it was admissible. It is equally clear that, in so far as it tended to establish an agreement to resell and reconvey, it was admissible. In neither view did the evidence tend to vary or contradict the writing, but to establish other and separate agreements claimed to have been made by the parties.

The appellant complains of other rulings of the court excluding evidence offered by way of cross-examination. We have examined these several assignments and failed to discover any errors in rulings of the court.

III. At the conclusion of the plaintiff’s testimony the defendant moved for a verdict, relying upon the correctness of his claims already, noticed. He complains of the overruling of the motion. For the reasons already stated, and the view we take of the testimony introduced by the appellee, we think the motion was properly overruled.

IY. The appellant complains of certain instructions, basing his complaint upon the grounds urged against the rulings already considered. The instructions are in harmony with the view of the case indicated in the rulings on admitting evidence and on the motion for verdict. For the reasons stated in considering those rulings, we hold the instructions to be correct.

Y. The appellant contends that the verdict is contrary to the evidence. It is sufficient to say that while there is much to support the appellant’s claims, those of the appellee have such support as that, under the familiar rule, we are not warranted in saying that the verdict is contrary to the evidence. The judgment of the district court is affirmed.