Carr v. Rising

Citations

• 62 Ill. 14

Syllabus

<p>1. Mortgage—when a deed is.—Where a person advances money, and at the same time receives a deed and gives back a bond to the grantor for a reconveyance, these facts incline to the belief that the transaction is a loan and a security; but not so, when the conveyance is made by the person to whom the consideration is paid, and the obligation to convey is given to another.</p> <p>2. Same.—When the owner of land caused the party holding the legal title to convey the same to the defendant for the consideration of $2,300, the full value of the premises, taking back a bond for a deed upon payment of $2,401, in one year thereafter, and a lease of the premises, and when sued in forcible detainer for possession, filed no bill to restrain the proceeding and have the transaction declared a mortgage until over two years afterward, and permitted the grantee to expend about $1,500 in improvements without asserting any right, and no obligation was given to the grantee for the payment of the money advanced by him, so that he might foreclose if the transaction was intended as a mortgage, and the former owner while in possession directed the assessment of the land to the defendant, and in a former suit in answer to a cross bill, denied that defendant had given the bond for reconveyance; and when the witnesses present at the execution of the deed, when all the parties were present, did not understand the transaction to be a security for money loaned: Held, on bill filed to redeem, that the transaction could not be regarded as in the nature of a mortgage, a security for money loaned, but was an absolute sale.</p> <p>3. Homestead—abandonment.—When a husband and wife had conveyed their homestead to A to secure a debt, and afterward procured A to convey the same to B, who paid the debt and something over, and B thereupon leased the premises to the husband, and gave the wife a bond for a deed to be made upon payment of a given sum within one year, but dispossessed them by forcible detain