Angus v. Holbrooke

Mr. Justice Benson delivered the opinion of the court. 1. The attack upon the sufficiency of the complaint is based upon the fact that the complaint contains no tender or offer of performance on the part of plaintiff and no allegation of election to purchase under the option pleaded. Plaintiff urges that the conveyance of January 18,1915, and the option to repurchase when construed together, as they should be, constitute a [546] mortgage, while defendants insist that the deed and the option are two entirely independent contracts and that the present action is based exclusively on the latter. The test of a contract whereby a mortgage is to be distinguished from a deed not only absolute in form, but also in effect, appears to be that if the conveyance is intended by the parties to be as security for a debt, the instrument is in equity a mortgage: 1 Jones on Mortgages (6 ed.), Section 264. Of course we do not wish to be understood as saying that if a deed is taken in satisfaction of a debt, and a written agreement to reconvey is given at the same time, that the two writings would constitute a mortgage, for they would not. The complaint in the present case expressly declares that the deed to Helen B. Holbrooke was executed to secure a debt and that the instrument, which was executed at the same time, agreed to protect plaintiff’s interest in the property. These allegations recite facts which make the transaction a mortgage. 2. The contention of defendants as to the absence of a plea of offer to perform as a prerequisite to his right of action herein, is fully answered in the able opinion of Mr. Justice Moore, in Eldriedge v. Hoefer, 52 Or. 241, 256 (93 Pac. 246, 94 Pac. 563, 96 Pac. 1105), wherein it is said that: “The rules of law do not impose upon a party to a suit or action the performance of vain things, as a condition precedent to the enforcement of a right; and when the plaintiff averred that he notified the defendants of the alleged offer for the land, and that he would pay them the sum which he admitted to be due, if they would permit him to redeem the premises from their lien, and they refused to comply therewith, the complaint stated facts sufficient to entitle the plaintiff to the equitable relief which he sought, without al-' [547] leging a tender or an offer to pay tbe sum conceded by bim to be due to tbe defendants. ’ ’ In tbe instant case tbe complaint alleges waste and a demand upon defendants that tbey restore tbe property to tbe condition in wbicb it was when received by them, preparatory to delivery under tbe terms of tbeir contract, wbicb tbey refused to do. This, we think, constituted a waiver of an offer to perform. We conclude that tbe complaint states a cause of action and the judgment will be reversed and tbe case is remanded with direction to overrule tbe demurrer. Reversed and Remanded With Directions. Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.