Smith v. J. R. Newberry Co.

The action was one to quiet title. Findings and judgment went in favor of plaintiff, and defendants appeal from such judgment and an order denying a new trial.

The court finds that in February, 1906, plaintiff was indebted to J. R. Newberry Company, a corporation, in the sum of one hundred and thirty-five dollars; that on said date plaintiff, being the owner and in possession of certain described premises, in order to secure the payment of said sum, executed to said J. R. Newberry Company an instrument, in form a grant deed, conveying the premises in controversy ; that notwithstanding the form of the deed, it was intended to be by way of mortgage to secure the debt; that such instrument was duly recorded, and on the third day of December, 1906, J. R. Newberry Company, in consideration of the sum of three 'hundred dollars, granted the premises to J. K. McGinnis; that McGinnis purchased said premises with knowledge of the fact that said instrument from plaintiff to Newberry Company was a mortgage and intended as such; that in June 1910, plaintiff tendered to defendant Newberry Company two hundred dollars in cash, being the amount of the principal and interest of the mortgage debt,…