The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1925-01-15
SUPREME COURT
From Ramsey County

EIONl 1SOU1OCy SOOuSy
Emma B. Dean,
Plaintiff and Appellant.
Plaintiff and Respondent.
VS..
j. H. Smith,
Defendant and Respondent
Defendant and Appellant.
CROSS APPEALS:
SYLLABUS:
/. The fact that transfer of real
property, in the form of a warranty
deed, was made subject to a defeas-
ance, may be shqYFb by evidence
aliunde, except as tagainst subse-
quent purchasers or encumbrancers
for value and without notice, under
section 6729, C. L. 1918.
2. A warranty deed, absolute upon
its face, is presumed to be an uncon-
ditional conveyance. The burden to
overthrow this presumption is upon
him who asserts the contrary and
the rule is that that proof, to be suf-
ficient, must be clear, satisfactory
and specific, and of such character
as to leave in the mind of the chan
| cellor no hesitation or substantial
| doubt.
3. When it is established by clear,
satisfactory and convincing evidence
that deed, absolute upon its face.
was intended as a mortgage, the
court will give effect to such inten-
ton; in case of dohb&., Upon the evi.
dence, the doubt will ordinarily be
resolved in favor of mortgage.
4. A mortgage is usually a secur-
ity for the payment Of debt; it is
an incident of an existing obliga.
ton. It is essential that there be
an agreement, express or implied, on
the part Of the mortgagor. or other
person in whose behalf the mort
gage is executed, to pay debt, OF
discharge an obligation in some
form, owing to the mortgage.
5. One of the strongest and sur
est tests as to whether a convey.
ance, absolute in form, shall be
deemed security conveyance, is the
! continuanceG6f the indebtedness OF
I its extinguishment. If the debt con.
tinues as such, the transfer is q
mortgage.
6. The absence of any written evi.
dence of debt is q circumstance
though not conclusive, indicating q
sale rather than conveyance for Sc,
curity. If, in the subsequent trans.
actions of the parties, there is no re.
cognition in any way Of the relation
of debtor and creditor. and the ven.
dee for a considerable period hold.
possession without paying interest,"
or rent, these facts 60 to show that
there is only an agreement for re.
purchase and not mortgage.
z. When the consideration ap.
proximates the fair value of the
property at the time Of the convey.
ance, it is circumstance tending to
show that sale rather than a mort.
/ gage was intended.
| 8. The reservation of a right t.
repurchase, or an agreement to re.
convey, is not alone sufficient ia
stamp conveyance, absolute upon
it's face, as mortgage.
9. Persons possessing capacity t.
contract may enter into an engage.
ment for the purchase and sale OF
real property, with reservation ia
the seller of q right to repurchase
the land at certain price and with.
in specified time.
10. Where it appears that: (a)
| there is no continuing obligation on
the part OF the grantor to pay q
debt, either pre-existing or created
at the time of the transfer; (b)
the consideration expressed in the
deed approximates the full value OF
the property described therein; Co
the grantor surrenders possession OF
the property to the grantee; (d),with
full knowledge of all the circum-
stances and ample opportunity te
assert whatever rights he has, the
grantor permits the defendant. fol
over six years, to deal with the pro-
perty as if an absolute conveyance
has been made; (e) the written evil
dences Of the. Indebtedness assumed
or discharged by defendant in con.
sideration Of the transfer, are oil
cancelled, released, and, for the most
part, actually delivered to the grant.
or; it 10 held; that the transfer was
an absolute conveyance.
IL. Whether the conveyance is q
mort 49, .er> .: dead Of trust depends