Swegle v. Belle

Stbahan, C. J. — The main question presented by this appeal is one of fact, and that is, whether or not the deed made by George Swegle and wife to Charles Swegle on the 3d day of September, 1887, was intended as a mortgage or [327] an absolute conveyance of the real property therein described. All other questions are subordinate to this. Since the decision of this court in Stephens v. Allen, 11 Or. 188, the law must be regarded as settled in this state that a deed absolute on its face may be shown by parol to have been designed and intended by the parties as a mortgage for the security of money, or to secure the performance of some act; and, as was said in that case, “ as such a transaction receives its character from what the parties intended to make it at its inception, the ascertainment of that intention always becomes the important inquiry. This necessarily requires evidence of the situation of the parties, of the price fixed in connection with the value of the property, the conduct of the parties before and after, and all the surrounding facts and circumstances so far as they are adapted to explain the real character of the transaction.” A brief reference to the facts disclosed by the record therefore becomes necessary. At the time of the execution of the deed in question, George Swegle was the owner in fee of the land in controversy, which was then of about the value of from $7,000 to $8,000. About the month of April, 1887, George Swegle borrowed $4,000 of Breyman Bros., for which he executed his promissory note and a mortgage on said real property to secure the same. In the month of August thereafter, Charles Swegle purchased said note and mortgage of Breyman Bros., paying the full face value therefor, and the same were regularly assigned to him without recourse. In the month of September, 1887, the deed in question was executed. A somewhat critical examination of the testimony of all of the witnesses shows that it was not intended as an absolute deed. The value of the property conveyed was nearly double the amount of the mortgage. Though careful and prudent in his financial matters, there is nothing in the evidence tending to show that Charles Swegle would strip one of his children of his property by only paying one-half of its value. On the contrary, before this deed was executed he offered to carry the debt at 7 per [328] cent, which was a lower rate than the note to Breyman Bros. bore. In addition to this, he told the plaintiff that he would sell the land, and that he should have all it would bring over and above the amount of the debt. The plaintiff testifies to this; and the tendencj^ of the testimony of Mrs. Swegle, the widow of the deceased, J. G. Evans, N. F. Herren, Robert Ford and Leander Bender was to establish that fact. So entirely satisfied were several of the children of Charles Swegle, as well as the widow, of the justice of the plaintiff’s claim, that they executed deeds of release to him of all interest in said real property. Being satisfied that the deed in question was executed as a security for money, it must be adjudged to be a mortgage to which will attach the right of redemption and every other incident of a mortgage. Something was said upon the argument as to the insufficiency of the plaintiff’s tender in writing made before the suit was commenced; but we do not think it necessary to pass upon that question at this time. The plaintiff could not make a tender in writing or otherwise of the amount actually due, for the reason that Charles Swegle had the possession of said land two or three years, and the rents and profits to which the plaintiff was entitled remained unaccounted for. He had the right to know the amount of these and to have the same deducted from the amount due Charles Swegle. The balance remaining due is what he must pay, and that could not be known till an account was taken. Finding no, error in the decree appealed from, the same must be affirmed.