Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-06-03
The MORNING ApPEA
Carson City. Nevada.
SUPREME COURT DECISION.

In the supeme Court Of the State ct
Nevaoa. No. 1920.
Albert r. Price, as Administrator
of the Estate Of VIM. r. Price,
deceased, II
M. e. Ward, Appellant
Appeal from the District Court Of the
State Of Nevada, liz ard Tor Wash
oe County,. r!or. 3. r Cur!er;i
Judge.
Torreyson & Summer field,
F. II. Norcrcss,
Fer Respondent.
A. &. Cheney,
For Appellant.
BY Eeiknap, }.
This is an action for damages by
reason OF the sale by defendant to
innocent purchasers without notice OF
timber land owned by plaintiffs III
1estate.
The complaint among ether things
alleges in effect that plaintiffs mites
tate borrowed from defendant the !
sum Of $1,000 and secured its payment
by his prOInissory note and mort
gage upon the above mentioned land. |
That thereafter the debt was furthe:
secured ny deed OF conveyance OF
the land, absolute in form. but intend
ed by the parties as mortgage, AMI
in this connection it is alleged that
the pro1nissory note is still in the pos
session Of defendant That defend
ant upon the i4th day OF October, 1891
wrongfully conveyed the mOrsgaeed
premises to J. y. Smith and F. d.
Hilton for q valuable cOnsiderai ION
without notice of plaintiffs rights,
and to his damage in the sum OF SO
800. The answer denied among other
things that the deed made by res
pondent was intended as mortgage,
and also alleged that before the de
livery of the iced to Smith and Hill
ton they had notice that intestates
estate claimed an interest in the mort
gagged land A Jury returned a YER
dict for respondent asse ssing his dam
ages at s2G59. From the Judgment
and an order denying motion for
new trial defendant appeals.
The controlling questions at The
trial We're: LIST. whether the deed tC
the appellant was in fact a mortgage:
2nd, il a mortgage whether Smith and
Hilton had notice that it was a mort
gage: 3rd, the damage. IL any. The
verdict being for respondent. the jury
must have considered that the deed
to appellant was given and intended
mortgage.
Upon the question whether smith
and Hilton were purchasers without
notice it was shown that Ward receiv
ed u deed Of conveyance of the land
from Price that the mortgage haG
not been discharged of record: that
Prices estate claimed an interest in
the property after the delivery of the
deed: that no enquiry concerning
money matters between the estate
and defendant was made. This evi
dence was sufficient to put a purchas
CT upon inquiry.
In support OF the Greer it is sait
that it was not essential to a!leee az,
prove that Smith and Hilton We're pu1
chasers without notice of the equities
of Prices estate and that Ward is es
topped ;l'on inIpeachins, his own deed
Il IS z Sufficient answer 20 thes
suggestions that respondent amend
ed his complaint in TIE District Cou,
so as to aliege that Smith and HiI,Cl
were purchasers without notice.
The amendment was made presnn
ably in conformity to the rulings Q
the District Court
The material issues made by til
pieadinss were as above stated. Tn
case was tried mon these issues, an
We have 10 right to disregard is
sues settled by the trial court an
not 4 subject Of review by the RECORD
judgement and order reversed an
cause ronar3ct.
| dissent. Fitzgerald J.
Massey. G. j.. ccncurIing.
The record in this case shows co1
clus;yely that Sm1.l and Hilton. tn
hoe. rs L,,
conveyed By Price in the deed inten,
ed IS . mortgage. had actual notic
Of the equities OF Price in the Ian
50 conveyed and it is Well settled tha
purchaser who has knowledge thu
MS Sr2IioT is holding the land und.
Iced absolute on its taca but Il
tended as a mortgage obtains II
greater CT better estate THAI his graz
tDr.
iouser !. Lamont 81 Pc ST 81
i:adiord V Folsom, IS Iowa Alb
kuhn V. Runpp, 40 Cal. 2S9:
Graham V. Graham. s. Ind. e.
Saith V. EnoeaeI. 81 IL. 500
Jenkins Y. Rosenberg. i05 I'll. 157
SGcn conveyance j. nothing more
effect than an assignment OF q NO,
gage.
Hasley V. Martin. 20 Cal. G45.
The conveyance OF Ward, therefor
could not operate to defeat any rig
OF action hello by Price. or tho
claiming under MIN with respect
the land. or for any damages comm
tee by Wards grantees. before Wa
therefore ccud be he,:i liable
Price. or those cla.o.inz under ii!
for the vat.e o. the land conveyed
Smith and Hilton it, must be shov
that they purchased without mott
OF Price s equities.
Meehan Y. Forester. D n. Y. .
Eros v Sutherland. II Mich. 53S.
| therefore concur.
Filed June 2. 1902
EHsene Howell.
Secretary OF State aud ex-officio Gle
OF the Supreme Court.
Filed with printer for puDlicati
June g 1907.