Mckenna v. Whittaker

Citations

• 9 S.D. 442
• 69 N.W. 587
• 1896 S.D. LEXIS 184

Syllabus

<p>Plaintiff executed to defendant a deed absolute in form, and received from him $100. As part of the same transaction, defendant executed a similar deed, which, by agreement, was placed in escrow, to be delivered to plaintiff upon payment of $125 within 00 days. Payment was not made, and the escrow was delivered to defendant and by him destroyed. Held, in an action to have the deeds adjudged to be mortgages, that the ultimate question of fact which the trial court should have determined before the supreme court could review the decision was, “What was the intention and understanding of the parties?” and that a finding that the deed from plaintiff to defendant was an absolute conveyance was not such a finding upon such, ultimate question of fact.</p>