Darst v. Murphy

Citations

• 119 Ill. 343
• 9 N.E. 887

Syllabus

<p>1. Mortgage—of a deed absolute in form,—whether a mortgage—of evidence on that question. The true character of a transaction may be shown by parol, and if, upon a consideration of the facts, it clearly appears that the deed, though absolute in form, was taken as security for the payment of money, it will, in equity, be held a mortgage.</p> <p>2. Ordinarily, the intent of the parties is to be drawn from a consideration of the deed itself. Therefore, to change the character of the instrument by parol, by attaching to it a condition of defeasance, the evidence should be clear and satisfactory.</p> <p>3. The gist of the inquiry, in cases of this class, is, what was the purpose for which the deed was executed; and every fact or circumstance tending to illustrate the purpose and intent of the parties is receivable as evidence.</p> <p>4. The fact of an existing indebtedness, in respect to which the deed is executed, the retention of the evidence of such indebtedness by the grantee in the deed, that the deed was procured by fraud or oppression, that there was a loan of money, the subsequent conduct of the parties in respect to the land, as, that the grantor had retained possession, and the like, and, indeed, almost every conceivable state of facts legitimately illustrative of the transaction, has been held competent evidence on the question whether a deed absolute in form was intended as a mortgage, or security for the payment of money by the grantor to the grantee.</p> <p>5. The declarations and statements of the parties contemporaneous with the execution of the deed, are admissible, not for the purpose of altering or varying the terms of the written instrument, but as tending to illustrate whether a condition of defeasance should be added thereto in equity; but such declarations are not necessarily of controlling force and effect, as they may be but a device to cover usury, or to conceal a hard and unconscionable bargain, and the like.</p> <p>6. In this case, the inade