Anderson v. Colwell

I think the opinion, although it follows the record, is mistaken in saying that the plaintiffs agreed to hold the property, keep the charges against it paid up, keep it in repair, and *Page 68 collect the rents. The other allegations of the complaint and the plaintiffs' brief show that the word "defendant" should be substituted for "plaintiff" in the second sentence of the fourth paragraph of the complaint.*

As I understand it, the case tried to the court was one in which the defendant was in possession under an absolute deed, and the grantor offered to prove a contemporaneous parol agreement to reconvey two or three years from date, on the theory that the transaction alleged in the complaint was in effect a mortgage.

The complaint, however, alleges an agreement under which the defendant, the alleged mortgagee, was to be paid an agreed rental by the plaintiffs for a part of the premises, and was also to be charged with the cost of keeping all the premises in repair. This seems to me utterly inconsistent with the theory that the defendant was merely a mortgagee. And the practical result of the account stated is that the defendant, who is supposed to have become a mortgage creditor to the extent of $1,800 by paying off mortgages (which he must have paid, in any event, for his own protection), is to have this credit more than cancelled by a charge of some $2,000 for repairs on the alleged mortgaged premises.

I cannot see how such a pleading can be treated as a bill to redeem.

In this opinion PRENTICE, C. J., concurred.