Clark v. Finlon

Citations

• 90 Ill. 245

Syllabus

<p>1. Mortgage—deed absolute in form. W here a conveyance of land is, in form, absolute, in order to change its character to that of a mortgage the proof must show clearly that such was the contract and intent of the parties.</p> <p>2. Where the grantee, on the same day a conveyance absolute on its face is made to him, executes and delivers to the grantor a written contract, in which he agrees to reconvey the lands to the grantor On payment of a given sum, which he owed, by a day specified, and both parties treat the deed as a security, the grantor remaining in the possession and use of the land as owner the same as before, this will show that the deed was intended only as a security for the payment of a debt.</p> <p>3. A subsequent settlement between the parties, of all accounts, followed by a surrender of the contract for a reconveyance, under an express agreement of the grantee to convey the land to the grantor upon payment of the amount estimated to be due, including usurious interest, within one year, will not render the conveyance absolute and prevent a redemption by the grantor.</p> <p>4. Same—mortgagee in possession chargeable loiih rents. Where a grantee of land, under a deed given as a security for a debt, obtains possession of a part of the land, which he occupies by his tenant, on bill by the grantor to redeem, the grantee should, in stating the account of the sum due, be charged with the value of the use of the land for the time he has occupied the same.</p> <p>5. A mortgagee in possession of the mortgaged premises is only required to account for actual receipts less such sums as he may pay out for taxes and necessary repairs, unless it. is shown that more could have been realized by reasonable diligence.</p> <p>6. Usury.—in equity, party seeking relief must pay legal interest. Where a debtor applies to a court of equity for relief against an usurious contract, the court will only entertain jurisdiction to grant relief on the condition that he shall pay