Dignan v. Moore

The opinion of the court was delivered by

Hoyt, J.

— We deem it unnecessary to enter into a discussion of the questions of law presented in the briefs of counsel, for the reason that, conceding the law to be as claimed by appellants, the facts shown by the record will not justify their contention founded thereon. The most that appellants claim is that a deed, absolute on its face, will be held to be a mortgage when in fact it was so intended by the parties thereto, or when it was given as security for the payment of money.

The undisputed proofs in this case show that the deed under which respondent claims was not given under circumstances which make either of these reasons for holding it to be a mortgage applicable. It appears from such proofs that the respondent absolutely declined to make a loan upon the property which was afterwards deeded to him. Such property was incumbered, and the grantors in the deed were about to lose their right of redemption. Under these circumstances, after much importunity on the part of the appellants, the respondent agreed to purchase their equity of redemption.

There is nothing whatever to show that he agreed to take it by way of security, or that it was understood between the parties that the money advanced by respondent was in the nature of a loan. It is true that it appeared by a separate writing that respondent agreed to reconvey the property to the appellants upon certain conditions, but there is nothing in the testimony to show that it was intended that the execution of this paper was to have any effect whatever in the construction of the deed. Instead thereof, directly the contrary is made to appear. If we should sustain the contention of the appellants, under the facts disclosed by this record, it would be in effect to hold that two persons standing upon an equal basis are incompetent to make a contract by which one of them shall sell to the other real estate, and make a deed thereto which shall be absolute as between the parties, and at the same time agree that the grantor in said deed shall have the right to repurchase the property sold. We are not prepared so to restrict the power of competent persons to' control their property and contract in regard thereto. If it appeared in the case that any unfair advantage had been taken by the grantee in the deed, that he had obtained the property for a grossly inadequate price, or that the rights of third parties were affected, a court of equity could doubtless interfere. But there is nothing of the kind shown by this record. The parties were dealing on equal terms, and the consideration was as large as under all the circumstances of the case could have been reasonably expected.

The judgment appealed from must be affirmed.

Dunbar, C. J., and Scott, Stiles and Anders, JJ., concur.