Bergen v. Johnson
Idaho Supreme Court
'APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge. An action to declare a deed a mortgage. Judgment for plaintiff. In order to justify a finding that a deed absolute on its face was given to secure a debt, the proof must clearly show a mutual understanding on the part of the grantor and the grantee that the instrument was executed, delivered and accepted as a mortgage.
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'APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge. An action to declare a deed a mortgage. Judgment for plaintiff. In order to justify a finding that a deed absolute on its face was given to secure a debt, the proof must clearly show a mutual understanding on the part of the grantor and the grantee that the instrument was executed, delivered and accepted as a mortgage. (Tilden v. Streeter, 45 Mich. 533, 8 N. W. 502; Jasper v. Hazen, 4 N. D. 1,‘ 58 N. W. 454, 23 L. R. A. 58; jRue v. Dole, 107 111. 275; Henley v. Hotaling, 41 Cal. 22.)…
1Opinion of the CourtStewart, C. J.
This is an action brought by the plaintiffs against the defendant for the purpose of having a deed declared a mortgage and to compel the release of said mortgage upon the payment of the amount found due.
The answer puts in issue the material allegations of the complaint and alleges that the deed set forth in the complaint was in fact a deed and not a mortgage, and that the grantee entered into possession of said land and has remained in possession since the execution and has improved the property.
Upon the issues made by the pleadings the cause was tried to the court and findings of fact and…
2Cases cited4 opinions
- Brown v. BryanIdaho Supreme Court · 1898
- McMillan v. BissellMichigan Supreme Court · 1886
- Kelley v. LeachmanIdaho Supreme Court · 1892
- Hannah v. VenselIdaho Supreme Court · 1911
3Cited by28 opinions
- Smith v. Faris-Kesl Construction Co.Idaho Supreme Court · 1915
- Hogg v. WolskeIdaho Supreme Court · 2006
- Totten v. TottenIllinois Supreme Court · 1920
- Clinton v. Utah Construction Co.Idaho Supreme Court · 1925
- Shaner v. Rathdrum State BankIdaho Supreme Court · 1916
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