Starks v. Redfield

Cassoday, J. Section 2781, R. S., provides, in effect, that the application to vacate or modify an injunction may be made upon the papers on which the injunction was granted, or upon proofs by affidavits or otherwise, on the part of the moving party; and, if the application be upon such proofs, but not otherwise, the opposite party may oppose the same by like [352] proofs, in addition to those on which the injunction was granted; but the answer, duly verified, shall be given only the effect of an affidavit in determining the right toan injunction. Here 'the defendant moved to vacate upon proofs by verified answer, which, for the purposes of the motion, had the effect of an affidavit; and hence the plaintiffs, under the statute, had the right to oppose the same by like proofs, in addition to those on which the injunction was granted. This being so, the court properly allowed the plaintiffs to read the four affidavits in resisting the motion to vacate. It is urged that the defendant acquired no interest in the land by reason of the purchase and conveyance from Robinson, in pursuance of the parol understanding and agreement between the plaintiffs and the defendant. In Carr v. Carr, 52 N. Y., 251, it was held that “in order to establish that a conveyance, absolute upon its face, was intended as a mortgage, and to give it effect as such, it is not material that the conveyance should be made by the debtor, or by him in whom the equity of redemption is claimed to exist. Whenever property is transferred, no matter in what form or by what conveyance, as security for a debt, the transferee takes merely as mortgagee, and has no other rights or remedies than the law accords to mortgagees. Accordingly, held, that where D. contracted for the purchase of certain premises, and had made partial payments thereon, and plaintiff, at the request of D., advanced the balance of the purchase money, and as security for the sum so loaned took a conveyance from the vendor, D. taking possession of the premises and occupying them as his own, and making subsequent payments to plaintiff, the latter was simply a mortgagee, and could not maintain ejectment.” In the opinion of the court, -Allen, J., said: “In truth, the consent of D. was to a conveyance to the plaintiff in such form only as to secure the payment of the advance; and, although he may have mistaken the law and his legal rights, the purpose being lawful, he has not lost his title [353] as against the grantee seeking to make a fraudulent use of the grant.” Page 261. The case is in harmony with the decisions in this court. Rogan v. Walker, 1 Wis., 527; Sweet v. Mitchell, 15 Wis., 641; Spencer v. Fredendall, 15 Wis., 666; Kent v. Agard, 24 Wis., 378; Wilcox v. Bates, 26 Wis., 465; Andrews v. Jenkins, 39 Wis., 476; Spear v. Evans, 51 Wis., 42. In Sweet v. Mitchell, a judgment creditor hid in the lands of his debtor upon the execution sale, with the verbal agreement to reconvey them to him on payment of a certain sum, which was advanced by a third person, who took the conveyance to himself upon a verbal agreement with the debtor that he would hold the land as security for what the debtor owed him; and it was held that parol proof of the facts was admissible to show that the transaction was a mortgage. In Spencer v. Fredendall, the latter purchased the former’s stead at a foreclosure sale, upon an oral agreement that he-would hold it as security for the repayment of the money- advanced by him; and it was held that, on payment by Spmcev-of the money advanced, he was entitled to a reconveyance,. In Wilcox v. Bates, Naiden recovered judgment of fares,, closure and sale against Wilcox, and on the foreclosure sale, the lands were bid in by Bates and Harvey, in, pursuance.©! a parol agreement between them and Wilcox; that they would; hold the title thus obtained as security for the money, advanced, on the purchase; and this court held the transaction to he. merely that of a loan of money and security, by way of; mortgage. The facts of this ease seem to bring- it within) the principles of the authorities cited. Had the plaintiffs passed the money as a loan into the hands of the defendant, and had.he paid it to Robinson, and had Robinson thereupon conveyed; the land:to the plaintiffs, at the request of the defendant, with, the understanding that they should hold the title as security, we apprehend no one would claim that the transaction was, not [354] essentially a mortgage; and yet such is the substance of the transaction in equity. The only perceptible difference is, that the defendant did not in fact handle the money. The defendant’s tax deed was confessedly void, yet it was sufficient to give color of title to one in possession. Its existence may have secured better terms on the purchase from Robinson. It scorns quite certain that the defendant has been in possession 'for some considerable time since the deed from Robinson, otherwise he could not have taken therefrom the 600,000 feet of lumber. To disclaim all title under the tax deed, and all interest in the purchase from Robinson, would leave the defendant without any possible excuse for his conduct in taking the timber therefrom, and threatening the continuance of the same. Upon the theory of the plaintiffs, he would, as mortgagor, have color of right to take the timber; bnt the threatened continuance of such waste would involve an irreparable injury to the land, which would render the security inadequate, and entitle the plaintiffs, as mortgagees, to an injunction, without averring or proving the defendant’s insolvency. Fairbank v. Cudworth, 33 Wis., 358. By the Court.— The order of the circuit court is affirmed.