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Kartheiser v. Hawkins

Supreme Court of Nevada
Jun 3, 1982
98 Nev. 237 (Nev. 1982)

Summary

holding that in quiet-title action by third party who took title to encumbered property, quitclaim deeds given by mortgagor to mortgagee at time of delivery of deeds of trust were merely further security for mortgage loan and did not surrender grantor's equity in properties

Summary of this case from In re Greene

Opinion

No. 13190

June 3, 1982

Appeal and cross-appeal from judgment quieting title to certain realty. Eighth Judicial District Court, Carl J. Christensen, Judge.

Embry Shaner, Ltd., Las Vegas, for Appellants.

Gordon L. Hawkins, Las Vegas, for Respondent.


OPINION


The respondent, Daryl B. Hawkins, commenced this action to quiet title to two residences held in the name of Robert Durfee, not a party to this action.

The residences were acquired as part of a joint venture agreement between Durfee and the appellants who contributed $10,000 to the properties.

Durfee, who became pressed by his creditors, decided to leave the country. Before doing so, however, he gave the appellants two $8,000.00 deeds of trust covering each residence and a quit claim deed to each of the properties.

Respondent Hawkins who had previously acquired a judgment against Durfee levied on both residences and obtained a Sheriff's deed to each of the properties. Hawkins then commenced the instant action to quiet title to the properties. Appellants answered that they were "mortgagees in possession" and counter-claimed for an accounting of the rents collected by Hawkins.

The district judge ruled that appellants had an $8,000.00 security interest in each property, as reflected in the recorded deeds of trust (the quit claim deeds were never recorded); that Durfee owned the remaining equity in the residences. The court granted a judgment of quiet title to the properties to Hawkins subject to the two $8,000.00 deeds of trust held by appellants.

The appellants' principal argument on appeal is that at the time of the Sheriff's sale of the properties to Hawkins, Durfee had no equity in the properties as he had quit claimed his interest in the properties to the appellants when he delivered to the appellants the two $8,000.00 deeds of trust.

Hawkins has cross-appealed, claiming the court erred in finding there was $8,000.00 due on each of the deeds of trust. Substantial evidence supports the court's finding that the sums were due.

The district judge found that when Durfee delivered the quit claim deeds to the appellants contemporaneously with the delivery of the deeds of trust, it was only for the additional purpose of securing the appellants' $8,000.00 interest in each of the properties. "A deed absolute on its face may be shown to be a mortgage in equity. . . . In such cases the form of the transaction will be disregarded and its substance and the intention of the parties at the time will control." Robinson v. Durston, 83 Nev. 337, 339, 432 P.2d 75, 76 (1967). The intentions of the parties are determined from all the circumstances surrounding the transaction. Rizo v. Macbeth, 398 P.2d 209 (Alaska 1965). The appellants chose to record the deeds of trust rather than the quit claim deeds; they filed notice of breach under the deeds of trust and commenced foreclosure proceedings. Appellants alleged in their answer that they were mortgagees in possession. The record supports the judge's finding.

Remaining assignments of error have been considered and found meritless. The judgment of the district court is affirmed.

GUNDERSON, C.J., MANOUKIAN, SPRINGER, and MOWBRAY, JJ., and ZENOFF, SR. J., concur.

The Chief Justice designated THE HONORABLE DAVID ZENOFF, Senior Justice, to sit in the place of THE HONORABLE CAMERON M. BATJER, Justice, retired. Nev. Const., art. 6, § 19(1)(c); SCR 10.


Summaries of

Kartheiser v. Hawkins

Supreme Court of Nevada
Jun 3, 1982
98 Nev. 237 (Nev. 1982)

holding that in quiet-title action by third party who took title to encumbered property, quitclaim deeds given by mortgagor to mortgagee at time of delivery of deeds of trust were merely further security for mortgage loan and did not surrender grantor's equity in properties

Summary of this case from In re Greene

holding that quitclaim deeds given by mortgagor to mortgagee at time of delivery of deeds of trust were merely further security for mortgage loan and did not surrender grantor's equity of redemption

Summary of this case from Full Gospel v. Investors

stating the parties' intentions "are determined from all the circumstances surrounding the transaction"

Summary of this case from 7912 Limbwood Court Trust v. Wells Fargo Bank, N.A.

stating that parties' intentions are determined from all the circumstances surrounding the transaction

Summary of this case from Hanneman v. Downer
Case details for

Kartheiser v. Hawkins

Case Details

Full title:JAMES KARTHEISER, RENEE CASELLI AND JOHN CASELLI, APPELLANTS/RESPONDENTS…

Court:Supreme Court of Nevada

Date published: Jun 3, 1982

Citations

98 Nev. 237 (Nev. 1982)
645 P.2d 967

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