The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-26

VS.. ....-.
Mrs. Harriet Bernard as executrix of
the last will and testament of William
NJ. Bernard, deceased, Mrs. Harriet
orth and J. c. Orth, Defendants and
Appellants.
G. e. Mack and Geo. o. Pyne, Attys.
for Respondent. -. -.
John Lothrops and A. Chartz, for
Appellants.
Decision
On February IS, 1893, the plaintiff
loaned $500 to William Bernard, now
deceased, and TO secure the payment
thereof he decided to plaintiff On that
day the lands described in the COM
plant, and at the same time plaintiff
executed to him a bond for a deed
whereby he agreed TO re-conyey the
property on or before February Is,
1898, provided that he was paid on or
before that date $500, and also SIS
annually. On February s, 1895 plant
if loaned Bernard the additional sum
Of 5000 and accepted as security for
$1,000. and interest deed made
20 plaintin at the time the $500 was
borrowed, and by release made in
writing acknowledged and recorded,
Bernard then relieved him from all
Obligations resulting from the bond
made February is, 1898, and there
upon plaintiff executed to Bernard a
new bond, dated February s, 1896,
conditioned that plaintiff would make
and deliver good and sufficient con
veyance Of the property to Bernard.
provided Plaintiff was paid $1,000 on
Or before January 1, 1900 and also
$50 annually, and further proyisioned
that if Bernard paid these amounts
and the taxes he would be entitled 10
the use and possession of the premises
A receipt and the statement or ad-
mission of Bernard a short time be-
fore his death indicate that the only
payments were on interest to the
Sth. day of February 1897. He died
the following year and letters test
amentary were issued to his widow
Mrs. Harriet Bernard who has s:nce
married c. ]. Ortiz Plaintiff de-
mand arising out of the above tran
sactions was presented against the
estate and by her as executrix was
rejected on August 90. 1898. There
is testimony indicating that she had
previously recognized the demand by
endeavoring to borrow money for its
payment. On July "a, 1901 the prop
erty was set over to her by decree
of distribution. From judgment de.
creeing the deed to plaintiff to be
a mortgage and ordering fore
obscure and sale of the premises to
satisfy the amount, $1731.25 and
S76.4O costs. found due to plaintiff,
she appeals.
The we'll settled doctrine that a
deed executed merely for the purpose
of securing a debt will be construed
as a mortgage IS not assailed, but for
appellant it is contended that as suit
was not brought until April, 1904,
more than six years after the last
loan and the giving Of the last bond
on February s. 1896. and more tnan
four years after the time. January /,
1000 fixed tor a conveyance tneFe-
under conditioned on payment, the
action is barred by the statute OF
limitations. 1t is said that
by executing written release OF the
first bond and accepting a new one
instead, at the time he borrowed
the last amount. 5000, Bernard did
not sign any writing agreeing ito
pay or acknowledging debt, and
that therefore the obligation to pay
on his part was merely verbal anc
would be barred in four years. We
do not SO view that transaction. Mos
instrument in daily use, such as deeds
mortgages, notes, orders, drafts an:
checks are signed by only one of tn.
part.es,but are not for that reason
verbal nor half verbal Although Der
nard executed no note or writin,
agreeing to pay any money, he signe,