Chisum v. Kelly

Alaska Supreme Court

Chisum v. Kelly

574 P.2d 1277, 1978 Alas. LEXIS 602

CourtAlaska Supreme Court

DecidedFebruary 24, 1978

DocketNo. 3234

StatusPublished

This text of 574 P.2d 1277 (Chisum v. Kelly) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chisum v. Kelly, 574 P.2d 1277, 1978 Alas. LEXIS 602 (Ala. 1978).

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Opinion

OPINION

PER CURIAM.

Finis and Lura Chisum mortgaged their property to appellees Simpkins, Dage and Webb as trustees for a group which had guaranteed repayment to a bank of a loan to the Chisums. When the Chisums defaulted on the loan they executed a deed, absolute on its face, in favor of the guarantors. The issue in this case is whether the deed should be reformed and given the effect of an equitable mortgage. The trial court found that the deed was intended as a conveyance. In so doing it properly followed Rizo v. MacBeth, 398 P.2d 209, 211 (Alaska 1965) where we held “that a deed absolute on its face may be declared to be a security agreement. However, there is a presumption that an instrument is what it purports to be, and clear and convincing evidence is required to overcome this presumption.”

As we view the case the only question presented is whether the trial court’s finding was clearly erroneous. We hold that it was not. In reaching this conclusion we accept appellants’ contention that Carl Mitchell was the agent of the guarantors. Mr. Chisum testified that he agreed with Mitchell that the property should be sold and the sale proceeds should be applied to his indebtedness, with any surplus to be returned to him.¹ It seems evident that the Chisums executed the deed to facilitate this agreement.² Consistent with this agreement the guarantors eventually did sell the property and since the sale proceeds were less than the outstanding indebtedness the Chisums were entitled to nothing.

AFFIRMED.

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OPINION

PER CURIAM.

Finis and Lura Chisum mortgaged their property to appellees Simpkins, Dage and Webb as trustees for a group which had guaranteed repayment to a bank of a loan to the Chisums. When the Chisums defaulted on the loan they executed a deed, absolute on its face, in favor of the guarantors. The issue in this case is whether the deed should be reformed and given the effect of an equitable mortgage. The trial court found that the deed was intended as a conveyance. In so doing it properly followed Rizo v. MacBeth, 398 P.2d 209, 211 (Alaska 1965) where we held “that a deed absolute on its face may be declared to be a security agreement. However, there is a presumption that an instrument is what it purports to be, and clear and convincing evidence is required to overcome this presumption.”

As we view the case the only question presented is whether the trial court’s finding was clearly erroneous. We hold that it was not. In reaching this conclusion we accept appellants’ contention that Carl Mitchell was the agent of the guarantors. Mr. Chisum testified that he agreed with Mitchell that the property should be sold and the sale proceeds should be applied to his indebtedness, with any surplus to be returned to him.¹ It seems evident that the Chisums executed the deed to facilitate this agreement.² Consistent with this agreement the guarantors eventually did sell the property and since the sale proceeds were less than the outstanding indebtedness the Chisums were entitled to nothing.

AFFIRMED.

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574 P.2d 1277, 1978 Alas. LEXIS 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chisum-v-kelly-alaska-1978.

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