Calhoun v. Lumpkin

Citations

• 60 Tex. 185
• 1883 Tex. LEXIS 297

Syllabus

<p>Mortgage.— In determining whether what purports to be a sale of land amounts to a sale or is a mortgage, equity will look to the intention of the parties, to be gathered from their situation and conduct, and all surrounding facts, as well as to the written memorials of the contract. If the relation of debtor and creditor existed when the deed was made, and which it assumed to cancel, then whether the transaction would be regarded as a conveyance absolute or a conditional sale would depend on whether the debt was absolutely satisfied by the deed, or whether the apparent vendee still had a right of action against the vendor on his debt. Citing Conway v. Alexander, 7 Craneh, 218; 2 Edw. Ch., 138, and 6 Paige, 480.</p> <p>2. Same.—When a debt forms the consideration for a deed, and there is no agreement at the time for a repurchase, the amount paid being a fair value for the property, and afterwards there is an agreement for reconveyance on the payment of the precise sum to which the old debt would have amounted had it not been paid, the case becomes a strong one to show that no mortgage was intended between the parties.</p> <p>3. Equity.—Before a mortgagor can recover property mortgaged, of which the mortgagee is rightfully in possession, he must tender the amount of money due on the mortgage. Following Morrow v. Morgan, 48 Tex., 304; Hannay v. Thompson, 14 Tex., 142.</p>