Pritchard v. Butler

MORGAN, C. J. (After Stating the Facts.) — All the assignments of error made by appellant which are deemed material are considered and determined as follows, viz.: The complaint sets forth the cause of action which, the facts show, existed at the commencement of the suit in ordinary and concise lan [521] guage, and, as we think, is entirely sufficient. The contract between Weil and Butler was never complied with by Weil, as appears by his own testimony, and was therefore of no effect,, and left the contract between plaintiff and defendant in full force; and any evidence relating to the Weil contract, and the-remarks of the court thereon, as to who should keep the said agreement, were entirely immaterial, and can have no effect. It was entirely proper for the court to submit the questions-proposed to the jury, and to adopt their findings when returned, if he believed them to be correct. It was properly an equity case, and the court could adopt or reject the findings of the jury thereon, at his discretion. A deed or bill of sale-of real or personal property, made by a debtor to his creditor, accompanied by a contemporaneous agreement between the parties for a reconveyance of the property upon payment of the debt, constitutes a mortgage. (See Kelley v. Leachman, 3 Idaho, 392, 29 Pac. 849; Jones on Mortgages, sec. 20; Smith v. Smith, 80 Cal. 325, 21 Pac. 4, 22 Pac. 186, 549; Taylor v. McLain, 64 Cal. 514, 2 Pac. 399; and a number of authorities cited in Kelley v. Leachman, supra.) The evidence of the making of this contemporaneous agreement to reconvey the property upon payment is conclusive, as testified to by both plaintiff and defendant. The evidence as to the-payment of the $285 by plaintiff to defendant is conflicting, and in such cases this court must receive the verdict of the jury and the findings of the court as conclusive. The judgment of the lower court is affirmed, with costs to respondent. Sullivan and Huston, JJ., concur.