Dwen v. Blake

Citations

• 44 Ill. 135

Syllabus

<p>1. Mortgage—what constitutes—intention of parties governs. To ascertain, whether a transaction between parties amounts to a sale or a mortgage, courts of equity will look beyond the mere forms with which it is clothed, and although it be a sale in form, if it clearly appears by proof to have been a loan or debt and security for its payment, it will be treated as a mortgage.</p> <p>2. Same—when inform, a, sale—proof must he clear to change its character. Where parties give to a transaction all the forms of a sale, the proof must be clear that it was intended as a mortgage, in order to change its character. Slight, indefinite evidence is not sufficient.</p> <p>3. Same — whatwiU he considered a mortgage. T., desirous of entering certain lands, applied to M., an agent of G., for the purchase of land warrants, for such purpose; whereupon an agreement was made between them, whereby, M. sold to him certain warrants, for which T. executed to him his notes for the purchase price, the payment of which was secured by entering the lands in the name of M„ M. giving to T. his bond for the conveyance of the same to him, upon the payment of the notes. T. failed to pay the notes, and GK, the principal, having died, M. quitclaimed the lands to G.’s heirs. Subsequently, the premises were sold on execution against T. who was in possession, on a judgment in favor of J., and B. redeemed from the sale, as a judgment creditor of T. On a bill to redeem filed by B., held, that the transaction amounted to a sale of the warrants, and the entry of the lands in M.’s name, was intended as a security for the payment of the notes, and must be treated as a mortgage; that M. held the land in trust for G.’s heirs, subject to T.’s equity of redemption, and that the deed by him to them was without consideration, and received by them merely as such heirs, and not as hona fide purchasers; and that B. by his purchase under J.’s execution succeeded to all of the rights of T.</p> <p>4. Tender—in a bill to