DUNAWAY v. JAYNE

DUNAWAY v. JAYNE
1940 OK 332
104 P.2d 561
187 Okla. 538
Case Number: 29674
Decided: 07/02/1940
Supreme Court of Oklahoma

DUNAWAY
v.
JAYNE et al.

Syllabus

¶0 1. MORTGAGES-- Burden of proof that instrument absolute on its face was intended as mortgage.
In an action brought by one grantor in an instrument absolute upon its face to have the interests of a cograntor in said instrument decreed to be an equitable mortgage, the plaintiff has the burden of establishing by clear, unequivocal, and convincing evidence that the instrument was intended by the parties to operate as a mortgage.
2. SAME--APPEAL AND ERROR--Action to establish equitable mortgage one cognizable in equity--Sufficiency of evidence to support judgment.
An action to establish an equitable mortgage is one cognizable in equity, and the findings and judgment of the trial court in such case will not be set aside by this court unless, after an examination of the entire record, it appears that the findings and judgment so made and entered are clearly against the weight of the evidence.

Appeal from District Court, Pottawatomie County; J. Knox Byrum, Judge.

Action by Count Dunaway against L. L. Jayne et al. to have a contract decreed to be an equitable mortgage. Judgment for the defendants, and plaintiff appeals. Affirmed.

Goode & Goode, of Shawnee, and R. F. Barry, of Oklahoma City, for plaintiff in error.
Frantz C. Conrad and John Staley, both of Oklahoma City, for defendants in error.

PER CURIAM.

¶1 This was an action to have a contract decreed to be an equitable mortgage. The parties appear here in the same order as they did before the trial court and will be referred to as they appeared below. Trial was had to the court. Judgment was in favor of defendants, the plaintiff appeals.

¶2 As grounds for the reversal of said judgment, the plaintiff submits the following propositions:

"The findings and judgment of the court are against the clear weight of the evidence.

"One partner cannot maintain an action at law against another partner.

"The court committed reversible error in rejecting competent evidence offered by the plaintiff.

"This court will render the judgment the trial court should have rendered-- a judgment for the plaintiff."

¶3 It will be unnecessary to discuss these contentions separately. The contract in question was one for the sale of certain oil and gas mining leases by Count Dunaway and L. L. Jayne to one J. F. Smith for a cash consideration of $1,500 and $26,000 out of oil to be paid out of the one-eighth of the seven-eighths working interest if, as, and when said oil was produced from the premises so sold. The plaintiff undertook to prove that the interest of L. L. Jayne as grantor in said contract was merely that of an equitable mortgagee to secure an indebtedness owing to her from the plaintiff. Evidence was in conflict in many material respects, but it tended to establish that the plaintiff and defendant were joint adventurers as defined in Coryell v. Marrs, 180 Okla. 394, 70 P.2d 478, and McKeel v. Mercer, 118 Okla. 66, 246 P. 619. The contract upon its face showed that the plaintiff and defendant were co-owners of the leases and interests therein described. The plaintiff had the burden of establishing by clear, unequivocal, and convincing evidence that the instrument was intended to operate as an equitable mortgage before he was entitled to recover. Embry v. Villines, 175 Okla. 552, 53 P.2d 277; Morrison v. Krouch, 141 Okla. 288, 285 P. 10. The plaintiff failed to sustain the burden which was placed upon him. The evidence, as above stated, was conflicting in many material respects, and the finding and judgment of the trial court finds ample support in the evidence. The action being one cognizable in equity, this court will not disturb the findings and judgment except where, after an examination of the entire record, they are shown to be clearly against the weight of the evidence. Villines v. Conatser, 151 Okla. 144, 2 P.2d 1024. The findings and judgment of the trial court are not against the clear weight of the evidence, therefore said judgment is affirmed.