The facts sufficiently appear in the opinion. This is an action for damages by reason of the sale by defendant to innocent purchasers without notice of timber land owned by plaintiff's intestate. The complaint, among other things, alleges, in effect, that plaintiff's intestate borrowed from defendant the sum of $1,000, and secured its payment by his promissory note and a mortgage upon the above-mentioned land; that thereafter the debt was further secured by a deed of conveyance of the land, absolute in form, but intended by the parties as a mortgage, and in this connection it is alleged that the promissory note is still in the possession of defendant; that defendant, upon the 14th day of October, 1897, wrongfully conveyed the mortgaged premises to J. A. Smith and F. D. Hilton for a valuable consideration, without notice of plaintiff's rights, and to his damage in the sum of $10,300.
The answer denied, among other things, that the deed made by respondent was intended as a mortgage, and also alleged that before the delivery of the deed to Smith and Hilton they had notice that intestate's estate claimed an interest in the mortgaged land. A jury returned a verdict for respondent, assessing his damages at $2,059. From the judgment and an order denying a motion for new trial, defendant appeals.
The controlling questions at the trial were: (1) Whether the deed to the appellant was in fact a mortgage; (2) if a mortgage, whether Smith and Hilton had notice that it was a mortgage; (3) the damage, if any. The verdict being for respondent, the jury must have considered that the deed to appellant was given and intended as a mortgage.
Upon the question whether Smith and Hilton were purchasers without notice, it was shown that Ward received a deed of conveyance of the land from Price; that the mortgage had not been discharged of record; that Price's estate claimed an interest in the property after the delivery of the deed; that no inquiry concerning money matters between the estate and defendant was made. This evidence was sufficient to put a purchaser upon inquiry. In support of the order it is said that it was not essential to allege and prove that Smith and Hilton were purchasers without notice of the equities of *Page 393 Price's estate, and that Ward is estopped from impeaching his own deed.
It is a sufficient answer to these suggestions that respondent amended his complaint in the district court so as to allege that Smith and Hilton were purchasers without notice. The amendment was made presumably in conformity to the rulings of the district court. The material issues made by the pleadings were as above stated. The case was tried upon these issues, and we have no right to disregard issues settled by the trial court, and not a subject of review by the record.
Judgment and order reversed, and cause remanded.
FITZGERALD, J.: I dissent.