First National Bank v. Ashmead

Citations

• 23 Fla. 379

Syllabus

<p>1. In the admission of oral testimony to prove that a deed absolute in form was made to secure the payment of money, and is, consequently, a mortgage, there is no violation of the rule which precludes the admission of oral testimony for the purpose of vary- - ing or contradicting the terms or language of which a written instrument is the repository. In admitting it for the former purpose, the court looks beyond the terms of the instrument to the real transaction or what was intended to be effected by the parties or their object in executing and receiving the de’d,; and equity will, to inquire into and carry out this object and prevent fraud and imposition, permit the introduction of either written or oral evidence.</p> <p>2. Parol evidence is admissible to connect papers which together constitute a deed and a defeasance, or a mortgage, and to show that an instrument bearing a subsequent date to the deed was either executed at the same time, or that its terms or substance were in fact agreed upon at the same time, and though subsequently reduced to writing, constitutes a part of the same transaction with the deed.</p> <p>3. Where the instruments connect themselves, and show that the pur pose was to secure the payment of money, no parol proof is necessary, even if it can be said to be admissible.</p> <p>4. A deed from a debtor to a third person, if made to secure the payment of money, is as much a mortgage as if made to the debtor for such purpose, and in this State the grantee takes only a specific lien on, and not the legal title to, the property ; and the fact that the object was to secure the payment of money may be proved by oral testimony as well in the one case as in the other.'</p> <p>5. A homestead is the subject of mortgage by the husband and wife, and all the principles stated above apply to a deed of conveyance, absolute in form, made by them of a homestead, to secure the payment of money.</p> <p>6. Husband and wife executed to S. a deed of real estate.