The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-03-27
4
i Supreme Court Decisions y

X 4 \ i X X Il 4 Il u u
The following decisions have been
made public by the supreme court:
James l.. Smith. Plaintiff and Appel
liant, vs. ]. c. Hoff. Defendant and
Respondent.
1. Where a conveyance of land is
accompanied by an instrument Of de-
%feasance providing for the reconvey-
ance Of the property on the payment
OF a debt or performance Of some 9TH
er act intended to be secured there
by, the two instruments may in case
Of doubt be taken together and held
to constitute a mortgage.
2. For the purpose of reducing a
its terms, to the character of a mort
gage. 1t Is not always material wheth-
er the contract which constitutes the
d~efeasance be incorporated in the
same instrument: and IL a deed alb
solute Is given. and at the same time
a separate defeasance is executed,
parole evidence is admissible to con-
meet the two writings and to show
that they We're parts of the same
transaction. and that the whole
amouted to and was intended to be a
mortgage.
5. When the grantor in a deed alb
solute Mt the same time takes back
from the grantee n written contract
time in which to redeem the premises
by paying the amount of the debt Or
consideration for the debt. and bind
ing the latter to reconvey on such re-
duction. the two papers will Eener-
ally be held to constitute a mortgage
and the effect of the transaction is not
altered by the fact that the contract
specifically limits the time for re-
demption and makes time an essential
element In the right to redeem. But
II the contract leaves it entirely OPP
net. and does not bind him to effect 81
redemption according to the agree
ment. It, is rather to he held a cordi-
tional sale than a mortgage.
4. Where a conveyance is made in
fee with a covenant Of warranty, and
there Is no defeasance either in the
conveyance or in a collateral paper,
parole evidence by which it is at.
tempted to show that the deed was in
tended to secure a debt and operate
only as a mortgage must be clear. un-
e%quivocal and convincing. or the pre-.
sumption that the instrument is what
1t purports to be must prevail. Where,
however, there is a conveyance by
~o>S "ssS "a III q a
paper. or a contract for resale, and
the evidence leaves it in doubt w.heth.
or the transaction was intended al a
conditional sale or. as q mortgage, nc
such rule of strict proof applies. and
the transaction will generally be treat.
ed as a mortgage. -.
.. When 1t is admitted or shown
by separate written instrument that
the transaction is not an uncondition.
al sale as the deed imports. but either
a mortgage or a sale with right to re-
purchase. the court. In the interest OF
complete Justice, is inclined to con.
strue the transaction as a mortgage
and on the question whether, in suct
case a mortgage or conditional sale
was intended, any substantial doubt az
to the intention will be resolved In
favor Of the construction that the con.
veyance is a security for a debt.
s. These considerations apply ir
cases where a third party at the solici.
tation of adebtor, takes an assignment
of the sheriff's certificate given upor
a foreclosure sale, and as a part OF
the same transaction gives back tc
resell and reconvey for the amount
Of money paid for such certificates
and o%bligating the said. debtor to pur.
chase the land and pay the sale
amount therefor. ,
(Syllabus by the court.)
Appealed from the district court o,
Ward county, Goss, j.
Action to determine adverse claim,
to land and quiet title thereto. Judg
ment for defendant. Plaintiff appeals
Affirmed.
Opinion by Bruce, j. Goss, j.. be
ing disqualified. did not participate.
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