de Bartlett v. de Wilson

Citations

• 52 Fla. 497

Syllabus

<p>1. An agreement that a deed conveying land shall operate as a mortgage to secure a debt is not within the statute of frauds, since it is not a contract for the sale of lands or any interest therein. It is a right reserved by the grantor to redeem the land upon the payment of the debt. This right is recognized by the statute and is not required to> be evidenced by writing.</p> <p>2. The relations existing between the parties at the time of its execution may be considered in determining whether a deed of conveyance of land absolute on its face was intended to operate as a mortgage to secure the payment of a debt.</p> <p>S. Where an agent of a creditor is authorized to foreclose a mortgage on land and to secure a settlement of the indebtedness, and the agent instead of foreclosing the mort-. gage takes a conveyance of the land to his principal with an agreement that the rents from the land are to be applied to the debt, and that the land will be reconveyed to the debtor when he pays the debt, and the creditor accepts and retains the conveyance, he does so subject to the conditions that properly render it a mortgage, especially when the consideration for the conveyance was only the principal of the unpaid debt.</p> <p>■i. In order to carry out the intention of the parties and to prevent fraud and imposition and to promote justice, parol evidence is admissible to show that a deed of conveyance of land absolute upon its face was intended to operate as a mortgage; and where it is shown that such a conveyance was executed to secure the payment ol money, equity will treat it as a mortgage and will decree a reconveyance upon accounting and settlement.</p> <p>5. In a suit to have a deed conveying land adjudged to be a mortgage and for a reconveyance upon accounting and settlement, where it is admitted that the debt existed, find that the deed was executed to prevent the foreclosure of a mortgage upon the same land for such indebte.lness, and no consideration for the conveya