Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-24

as attorneys fees in case suit were
instituted TO collect the note or any
part Of IT, In order to secure the
payment OF the note the makers
/ thereof executed to the Trust Com
pany mortgage Of four quartz mining
claims in Josephine county, of which
premises, subject to the paramount
/ title OF the United States, Jewell
owned an undivided two-fifths anC
each OF the other mortgagOrs one
fifth. In January, 1909, no part oi
the note having been paid, the payee
I insisted upon its discharge and threat
ened to foreclose the mortgage, where
upon the plaintiffs and the defendant
Bailey executed to the Trust Company
deed of the mortgaged premises, in
cluding an appurtenant water right, a
quartz mill, machinery and tools, and
received the note, secured a cancella-
ton Of the mortgage and also obtained
the surrender of an unsecured note
The consideration for the latter relin-
quishment was the assignment to the
Trust Company of a claim for ex-
penses incurred in moving machinery
to the mines.
A contract was entered into March
! s, 1909, by the terms Of which the
Trust Company stipulated to sell and
convey to the defendant, the Holman
Foskett Mines Company, a corpora
tion, hereinafter called the Mines
Company. all the property described
in the deed referred to. for the con
sideration of 100000 of which
$4,000 was then received, $4,000 tc
be paid April / of that year. S1,O0O.OC
on the first of the succeeding July
and 100000 a month thereafter, on
account of which 100000 had been
paid when this suit was commenced
The plaintiffs, asserting that the
deed so executed was intended by the
parties to the instrument as a mort,
gage to secure the sum of $3,000.0C
and interest, demanded of the Trust
Company an accounting for the money
which 1t had received under the con-
| tract of sale, in excess of the original
debt and interest, but failing to secure
any recognition of their claim this suit
was instituted, ]. r. Bailey being made
a party defendant because he would
not join in the prosecution.
The complaint sets forth tha facts
hereinbefore detailed and alleges that
the deed was executed as further Sc
curity and pursuant to an agreement
with the Trust Company whereby the
mortgagors were to endeavor to sell
the mines, and after discharging the
Indebtedness referred to,the remainder
of the purchase price was to have
been paid to the tenants in common;
that the mortgagors secured as a pur-
chaser of the premises the Mines
Company with whom the contract OF
sale was effected with their consent
and they offered to make to it a con-
firmatory deed or to execute such
other evidence of title to the mines as
the court might decree.
The answer denies the material
averments of the complaint and for a
further defense sets forth new matter
which is denied by the reply. Based
upon the issues thus formed the cause
was tried and the suit dismissed from
which decree the plaintiffs appeal.
Moore, j. 1t is contended that a
consideration of the situation of the
parties to the deed; of the price stipu-
lated as a consideration for the mines
when compared with their value; ot
the conduct of the parties before anG
after the deed was given; and of the
circumstances attending the transac-
ton, shows that in executing and ac-
cepting the deed it was intended that
the sealed instrument should be Sc.
curity for the payment of a debt, anC
such being the case errors were com.
mitted in dismissing the suit and in
not granting the relief sought.
The intention of the parties at the
time an agreement is consummated tC
execute a deed determine whether OIL
not title to property was to be ire.
vocably transferred, or the convey.
ance though absolute was to operate
as security for the payment of deb
or the performance of an obligation
kramNr V. Wilson, 40 Ore. 333; Hal
V. O'Connell, so Ore. 1854; Elliott v
Bozorth, 80 Ore. 391 Based on the
maxim that person takes ordinary
care of his own concerns IL. o. [,
sec. 1893, sub. A. disputable presump.
tion arises from the execution of ar
absolute deed that the conveyance
evidences the intention of the parties
except in cases of fraud. Parrish V
Parrish, 80 Ore. 4S6. In order to ov.
ercome the deduction which the law
thus expressly directs to be made
from particular facts, the burden Of
proving that a seaisd instrument is
not what it purports to be is cas-
upon the party who asserts different
signification. Parol evidence is suf
ticient for that purpose but in order
that title to real property may be
rendered secure, proof of that char.
acter ought clearly to preponderate.
Plaintiffs counsel seems to place
much reliance upon the case of Ste.
phens " Allen, II Ore. 1SS, 100, where
in referring to evidence tending tC
establish the subordinate elements OF
fact relied upon herein to disclose the
intention of the parties, it is said.
AS a consequence of this doctrine
each case must be scrutinized anC
judged by its own surrounding facts
and circumstances, and when the re
suit of the evidence is to produce
doubt, the courts incline to construt
the instrument to be a mortgage.
The authorities cited to support this
declaration of a legal principle ar,
Jones, Mort sec. 279; Conway's Exr
V. Alexander, Cranch 21S; Edring
ton V. Harker, 3 j. j. Marsh 354. eacl
of which refers to transaction where
doubt exists as to whether the con
veyance was intended as a mortgage
or a conditional sale.
II the transfer of title is made tc
/ danpnd unop tbo ,,o,f.,,.,. - =