Ewart v. Walling

Citations

• 42 Ill. 453

Syllabus

<p>1. Conveyance—when held a mortgage. A deed, absolute on its face, will be held a mortgage, if, from the instrument in writing, and the surrounding circumstances, it appears, that it was the intention of the parties, that it should be a security for a debt. The intention of the parties, when ascertained, must govern.</p> <p>2. Mortgage — evidence of. Where the grantor was indebted to the grantee, was sued, and he prepared a deed for property of thrice the value of the debt; sent an agent to the grantee with the deed, without any previous negotiation, and proposed to deliver it upon receiving a bond for a reconveyance, on the payment of the debt within three years, and the grantee objected, saying he only wanted his money, but finally consented upon being assured, that the property was of much greater value than the debt, and it was agreed, that the debtor should occupy the property free of rent, which he did: Held, that the transaction constituted but a security for the debt, in equity, and not an absolute conveyance of the land, and might be foreclosed or redeemed like a mortgage in the usual form.</p> <p>3. Same. In equity, it is not the form but the intention, that gives character to such transactions. Equity will enforce it as an absolute conveyance or as a mortgage, according to the design of the parties when it was entered into by them.</p>