Morris v. Nyswanger

Citations

• 5 S.D. 307
• 58 N.W. 800
• 1894 S.D. LEXIS 61

Syllabus

<p>1. Whether the execution of an assignment of a bond for a deed, the recitals of which authorize the holder of the legal title to convey the same to the assignee of the bond, was intended to effect an absolute sale, or to operate as a mortgag'e, is a question to be determined from the facts and circumstances in evidence.</p> <p>2. An assignment of a bond for a deed which purports on its face to convey absolutely all the interest which the assignor has in certain property will not be held to operate as a mortgage given to secure an existing debt, unless it affirmatively appears that such was the intention of the parties to the transaction; and an agreement to resell the property upon the payment of a certain sum of money at a specified time, made immediately subsequent to the assignment, does not change the character of the transaction, and is not inconsistent with the idea of a sale,</p> <p>3. To secure the payment of a note for $200, R. conveyed by warranty deed, certain lots, worth about $500, to EL, who executed and delivered to R. as a part of the same transaction, a bond for a deed, which R. subsequently, and in consideration of $228, assigned to N., and authorized EE. upon payment of R.’s promissory note for $200, to convey the lots by warranty deed to N. Subsequent to the assignment above mentioned, though on the same day, but after the parties had separated, N. executed to R. a contract for a deed, of which time was made the essence, and took R.’s note for $228 as evidence of the amount which R. must pay at a specified timeoin order to repurchase the property. Shortly afterwards, and upon payment of the $200 note, H. conveyed the property by warranty deed to N., in accordance with the terms of the assignment, and at the special) instance and request of R. Held, under the evidence, that the transaction was an absolute sale of the property.</p> <p>(Syllabus by the Court.</p>