Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-24
OREGON SUPREME
COURT DECISIONS

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Continued from page four.
working TO sell the property and
asked him if he was in a hurry t.
have the deed turned over; he SAID
he was; / told him l did not feel like
sacrificing my is years work and turn
it over to the bank, but should receive
something out of il; he said he didn
care if l received S20,00000, he didn't
want the mine; all he wanted was the
deed signed over so as TO secure him
SO. he could sell the property to get
the money for the bank, and We could
have what was over" and that tn.
witness and his wife soon thereafter
executed the deed.
This sworn declaration, respecting
the conversation detailed is substan-
TALLY corroborated by the testimony
OF w. Harmon who states that it oc-
CURED at Grants Pass, saying:
stood probably 90 feet away from Mr.
Bailey down the street" but plainly
heard the colloQuy, in narrating which
and referring TO Mr.. Bailey he deposeJ
as follows: George says l don't pro
pose giving is years work away Iir
Tufts says we are not asking yOu to
all the bank cares for is its money;
we don't care a damn for the mine II
you make S15,O00.OO out of it; you
can have all over what is coming to
the bank"
T. ], Tufts testified that about the
time and Ut the place stated he met
G. N. Bailey to whom he said 81
didn't want the mine; the bank want
ed its money, l was giving them ev-
cry opportunity to avoid taking over
the mine; but that he did not prom
Use to pay over any surplus in case
the deed was executed to the Trust
Company.
The chief circumstances attending
and explaining the transaction were
the urgent demand of the agent nf
the Trust Company that the note for
$9,0O0.00 and interest be paid; his
threat to foreclose the mortgage lien
unless the money was forthcoming
prior to a session of the court soon
to convene the inability of the mort
gagOrs to liquidate the Indebtedness
or to secure a purchaser of the mines;
and their desire to avoid the conse-
quences of a suit These subsidiary
facts induced the execution of the
| deed.
The plaintiff Harmon wrote a letter
to G. N. Bailey in which, in referring
to the proposed conveyance of the
mines to the Trust Company and to
what its agent offered, he states:
Tufts has agreed to give us what
money he gets over and above what
| is coming to them" The person to
whom the letter was mailed testified
that relying upon the declaration
quoted he executed the deed.
Jewell also testified that confiding
in the representations made to him by
his cotenants, that the money received
from a sale of the mines by the Trust
Company after discharging it's debt,
was to have been paid over to the
mortgagors, impelled him to join in
the execution of the deed, saying that
it was his understanding" that the
surplus was to be returned. Harmon
testified that such was his "under-
| standing"
The foregoing is thought to be a
fair synopsis of the material testi-
mony' which has been set forth at
unusual length in order to show the
cooperating incidents that seemed 10
| influence the execution of the deed.
Looking at all these circumstances IN
the light most favorable to the plain
tiffs, we do not think that they have
made a case which so preponderates
as to entitle them to a decree
From a consideration of all the tes-
timony some doubt may arise respect
| ing the nature of the transaction but
| if a degree of evidence amounting only
to a mere state of uncertainty is suf-
| ficient to warrant the alteration of a
deed, purporting to be absolute, and
to authorize it to be construed as a
mortgage when the burden of proof
rests upon the party who attempts to
establish that fact, ii is safe to predict
that faith in the certainty of legal
! titles, the transfer of which is under
taken to be evidenced by formal con-
veyances, would be very much inn
paired.
The plaintiffs have not made, in our
| opinion, such a case as the law re-
quires nor could they well do so with
out an averment and proof of fraud.
| No rule of equity iphibits mortgagor
from conveying to the mortgage the
encountered property in consideration
of discharge of the indebtedness and
cancellation of the lien. One of the
crucial tests by which to determine
that deed, absolute in form and exc
cuted under the circumstances indi-
Gated, shall forever retain the char
acter which it assumes is the extin-
guishment of the secured debt or the
abolishment of part thereof, equal
to the value of the property described.
If the debt is not diminished by the
execution of a deed the property sub
ject to the lien, it is reasonably to
| be inferred from the transaction that
/ the conveyance was intended by the
| parties as further security or was ex-
ecuted to protect or advance their
interests.
The surrender of the mortgage note
and the cancellation of the lien estab-
lish the fact beyond the possibility of
a doubt that the entire debt was ex-
tinguished.
Some latent equity is invoked in aid
of Jewell on the ground that relying