Franklin v. Ayer

Citations

• 22 Fla. 654

Syllabus

<p>1. It is an established rule of equity that parol evidence will be admitted to show that a deed absolute on its face was intended by the parties as a mortgage. Facts discussed and the transaction held to be a mortgage.</p> <p>2. Tne existence or non-existence of a debt held to be a distinguishing test as to whether a transaction is a conditional sale or a mortgage. Evidence considered and held that a debt existed between the parties.</p> <p>3. Courts of equity will, in pursuance of a wise and benign rule, in cases of doubt as to whether the parties intended the transaction as a mortgage or conditional sale, hold it to be a mortgage.</p> <p>4. When the mortgagor, though after the time it was due, tenders to the mortgagee the amount of the debt secured by said mortgage and the interest thereon up to date of the tender,' at the rate agreed on, and the mortgagee refuses to receive it for the alleged reason that he had sold the mortgaged property to a third party, an act which he no authority to do, and the mortgagor deposits the sum with the Clerk of the Circuit Court of the county in which the land is situated for the use of the mortgagee, and takes his receipt and files his bill to redeem, and recites therein that he had deposited such sum in the custody of the Clerk of the Court for defendant’s use, and appends to such bill the receipt of the clerk as an exhibit: Held, That it was a legal and valid tender—that the bill substantially alleged all the facts necessary to show that it was a good tender—that the mortgagee was not entitled to recover interest on his debt after the date of the tender, and that upon sustaining the allegations of his bill in the court below the mortgagor was entitled to recover costs against the mortgagee.</p>