Swegle v. Belle

Deed — Mortgage—Parol Defeasance. — A deed absolute on its face may be shown by parol evidence to have been intended as a mortgage to secure the payment of money. Mortgagee in Possession — Account Tender. — A mortgagee in possession is liable to account to the mortgagor for the rents and profits, and in a suit for an accounting and redemption, no tender is necessary before the commencement of the suit

Marion county: R. P. Boise, Judge. Defendants appeal. The object of this suit is to have a certain deed, made and executed by the plaintiff to Charles Swegle in his lifetime, declared to be a mortgage, and for an account of the rents and profits of the land described in said deed, and for the redemption of said real property, or such other relief as may be proper. The findings of the court are as follows: “(1) That the plaintiff, on the 1st day of April, 1887, was the owner of the premises described in the complaint, and that on that day he executed a mortgage on said premises to W and E. Breyman, due from him and his wife to them for the sum of $4,000; that afterwards, on the 31st day of August, 1887, Charles Swegle, the father of the plaintiff, paid to said W. and E. Breyman said $4,000, and had said note and mortgage assigned to him; that afterwards, on the 3d day of September, 1887, tbe plaintiff and bis wife executed to Charles Swegle a deed to said premises, which is made “Exhibit A,” and attached to this complaint; (2) that at the time of the execution of said deed marked “Exhibit A,” it was agreed and understood between the plaintiff and his father, Charles Swegle, that said George Swegle should have the right to redeem said premises on the payment to him, Charles Swegle, of the amount of money which Charles Swegle had paid to W. and E. Breyman, with 7 per cent interest; and that said Charles Swegle was to collect the rents and profits of said premises and apply the same on said debt; (3) that the said debt on the 1st day of June, 1889, was the sum of $4,719.61; (4) that the amount of the rents and profits of said premises accruing to Charles Swegle and his estate was, June 1,1889, the sum of $685.15, leaving a balance due said estate at that time the sum of $4,034.46; (5) that about and prior to the commencement of this suit, the plaintiff offered to pay to the estate of said Charles Swegle the said sum of $4,034.46, and served upon the defendants an offer in writing to pay the same, and that the offer was not accepted by the defendants.” As conclusions of law the court finds: “(1) That said deed marked “Exhibit A” was at the time the same was executed intended to be and operate as a mortgage to secure the sum of money which Charles Swegle paid to W. and E. Breyman for the transfer of the mortgage of plaintiff and wife to said W. and E. Breyman; (2) that plaintiff is entitled to redeem said premises on the payment to the estate of said Charles Swegle of the said sum of $4,034.46; (3) that the plaintiff on the payment of said sum of $4,034.46 will be entitled to a conveyance of said premises to him from the heirs of said Charles Swegle. It is therefore ordered and decreed by the court that the plaintiff pay into this court, for the use of the estate of Charles Swegle, deceased, the sum of $4,034.46, within thirty days from the date of this decree, and that within thirty days thereafter, to wit: within sixty days from the date hereof, the defendants execute in due form a conveyance or conveyances of all their interest in said premises. And in case of any failure of said defendants, or either of them, to so execute such conveyance or conveyances, then this decree shall stand in lieu thereof, and be effectual to transfer from said defendants to this plaintiff all of the estate or interest which said defendants, or either of them, may have in said premises; and that the plaintiff have and recover of and from the defendants his costs and disbursements in this cause, taxed at $278.20, and that execution issue therefor.” The heirs at law of said Charles Swegle are made parties defendant; also the husbands, respectively, of his daughters who are married; also the administrator of his estate, and the guardian of one minor heir. From the decree above set out, this appeal is taken by the defendants Nancy Belle, Henry S. Belle, Olivia E. Holmes, H. R. Holmes, Charles A. Brown, and Emma Brown, Frank E. Brown, and A. Bush, administrator of the estate of Charles Swegle, deceased. We claim that under the law governing this class of cases, the plaintiff has not made out his case with the clearness required, and cite Crawford v. Albany Canal Co. 31 Or. 243; Jones on Mortgages, §§ 242, 257, 260, 262, 267; Fnsminger v. Fnsminger, 75 Iowa, 89, 9 Am. St. Rep. 462; SateifLeld v. Malone, 35 Fed. Rep. 445. Our next position is that the evidence, taken as a whole, shows a sale of the land by the respondent to his father, with the understanding that all he could realize for it, over and above the Breyman mortgage, was to belong to the respondent. This would not constitute the instrument a mortgage in law. (Rogers v. Beach, 115 Ind. 418; Fuller v. Pratt, 10 Me. 197; Vincent v. Walker, 86 Ala. 333; Gassert v. Bogle, 7 Mont. 585; Miller v. Yturria, 69 Tex. 549; Harness Go. v„. Behoelhopf, 71 Tex. 418; Devore v„ Woodruff, 45 N. W. Rep. 701.) Our next point is, that the alleged tender was not sufficient. The respondent offered in writing to pay the amount he claimed was due on the land. The statute, section 852, provides in effect that an offer in writing to pay a particular sum of money or deliver a specific property will be the equivalent of the actual production thereof, if not accepted by the party to whom it was offered, etc. A tender must be kept good. If the money had beeu actually counted out iu the presence of the ajipellants and offered to them, and been by them refused, the respondent would have to follow up his tender — bring the money into court. Now, the statute above referred to only operates to dispense with the initiatory preceedings, — it goes no further, — aud such is the constructiou placed ou said statute by this court. {Ladd v. Mason, 10 Or. 308; Ilolladay v. IIolladay, 13 Or. 523; Fuller v. Felton, 16 Ohio, 457; Raymond v. Bearnard, 12 Johns. 274, 7 Am. Dec. 317. Again: a tender, to be effectual, must be unconditional. {Holton v. Brown, 18 Vt¿ 224, 46 Am. Dec. 148; Thayer v. Brackett, 12 Mass. 450; Clark YcMayor ofN. K. 1 Keyes, 9; Smith v. Keels, 15 Rich. (S. C.) 318.) . It is claimed by the respondent that the instrument attached to plaintiff’s complaint, marked “Exhibit A” and made a part thereof, was intended as a mortgage to secure to his father, Charles Swegle, the payment of the sum of |4,193.78 and interest, as alleged in his complaint. A deed absolute on its face may be shown by parol to have been intended as a mortgage. The conveyance of lands for the purpose of securing the payment of a sum of money, if it leaves a right of redemption upon the payment of the debt, and if there is a power of sale, whether in the creditor or some third person to whom the conveyance is made for that purpose, it is still in effect a mortgage. It is always with regard to the actual facts and not to the forms of the transaction, by which equity is governed in determining the real character of the instrument. Whether intended as an absolute conveyance, or a mortgage, it is equally valid, and equity will give effect to it according to the substantial intent of the parties. {Stephens y. Allen, 11 Or. 188.)