Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-04
Kinney vs.. Smith, Coos County.

Hamilton, Judge. Submitted on briefs,
February 1911. G. A. Sehlbrede,
for appellant John F. Hall, James
T. Hall and J. W. snover, for re-
spondents. Eakin, C. ]. Modified.
On November 9, 1907, plaintiff exc
cnted and delivered to defendant, Ber-
tina j. Smith-wife OF defendant, X.
H. Smith--a warranty deed, convey
ing to her IL lots in the town site Of
Coos Bay, for the expressed consider
alton Of $4,000. Plaintiff commenced
his suit on January 20, 1908, to have
the deed decreed to be mortgage.
II appears that prior to the execu-
ton Of the deed, plaintiff and r. H.
Smith had a settlement, in which 1t
was agreed that plaintiff owed r. H..
Smith $1,000. and that $500 thereof
should be paid within two or three
days; and, as found by the lower
court, plaintiff promised to pay, and
defendant r. H. Smith agreed to re-
ceive the s17O0 at any time within 80
days from that date in redemption Of
the premises. The deed was made to
Bertha ]. Smith only for convenience.
The $500 was paid soon thereafter.
The circuit court decreed that the
deed was intended as a mortgage and
that plaintiff within 80 days from the
date of filipg this decree in the above
entitled court pay to the defendant
r. Fl. Smith the said sum of seventeen
hundred dollars with interest thereon
from November 9th, 1907, at the rate
of six per cent per annum. That
upon the failure of plaintiff to make
payment Of said sum OF money within
said time that all interest Of said
plaintiff in or to said real property
be barred and foreclosed; that there
after said plaintiff have no further
interest in said property or any part
thereof" Plaintiff appeals.
Eakin, G. j. plaintiff appeals from
that portion Of the decree which re-
qulres him to redeem, his contention
being that by his complaint he did
not seek to redeem but to have the
deed decreed to be mortgage.
Tn complaint does not state the
amount of the debt secured, only
states that the deed was intended as a
security for such sum as may be
found to be due. There Is no pre-
tense that there was any mistake or
error in the terms of the instrument.
No doubt defendants motion to re-
quire plaintiff to make the complaint
more definite by stating the amount
of the debt secured should have been
allowed. When plaintiff seeks equit-
able relief, In having the deed ad-
Judged to be mortgage, he must
show willingness to do equity by
paying the mortgage debt; 27 Cyc.
1880; Cowing " Rogers, "a Calf.
64S; Heacock v. Swartwout, 2S Ill.
291. There is no doubt OF his remedy
In equity to enforce his right of re-
demption, but he has no such remedy
to reform or add additional terms to
an instrument that Is in the form and
contains all the terms originally in
tended. The evidence OF the whole
transaction, offered to establish the
character of the deed, discloses that
there was no uncertainty as to the
amount of the debt, the lower court
evidently treated the complaint as
one to redeem The defendant has
not appealed, therefore he Is not dis
putting the findings of the trial court
that the deed is mortgage. After
reading the evidence we are satisfied
with that finding. The $4,000 being
the expressed consideration Of the
deed, It undoubtedly stood as security
for the $500 as well as the $1,000, the
latter sum being payable at any time
within 80 days. The defendant con-
tends that It was conditional sale,
but the courts are inclined to con-
strue the transaction a mortgage If
uEon the evidence, there is any doubt
as to whether it was intended as a
sale or as mortgage.
The courts generally incline against
sales, and give the benefit
Of any doubt arising upon the evil |
denee in favor Of the grantor's right
to redeem; Jones, on Mortgages, |
S79 stephens " Allen, IL Or, |
1888; Elliott " Bozorth, 80 Or. S91. |
In this state mortgage does not pass
The title to the mortgagce n Is only
lien upon the property, the title re-
naming In the mortgagor (Adair v
Adair, % Or, ll5, 1907, and this is
true regardless of the form OF the
II applied to an instru-
nent in form deed but Intended as
mortgage; Thompson V, Marshall,
81 Or, III; Adair v, Adalr. supra:
Marx V, LaRocque, 81 Or, as, AZ;
add v Johnson, SO Or. 1876, col;
Dekum v Multnomah County SS Or,
1853, 1855; Starr v. Kaiser, ii Or 40,
l75; Marquam v. Ross. A Or, S74,
I2S. The title to the property cannot
BASS to the mortgagee except by