Hancock v. Harper

Citations

• 86 Ill. 445

Syllabus

<p>1. Mortgage—when deed is—presumption. The fact that a conveyance of real estate is in form an absolute warranty deed raises a strong presumption that it was a sale, and this is strengthened by lapse of time. To show such a deed to be a mortgage only, the proof must be clear and convincing.</p> <p>2. Where a party, after making a warranty deed for a lot, collected no rents, paid no taxes on the property, or interest to his grantee, and the latter took no obligation from the grantor for the payment of money, and never applied for the payment of interest, and nothing was said between the parties on the subject for over twelve years, it was held, that thsse facts and circumstances consisted much better with an absolute sale than with a loan and mortgage.</p> <p>!i. Same—parol evidence to show deed a mortgage. It is the doctrine of this court that parol evidence is admissible to show that a deed, absolute on its face, was intended as a security for the payment of a debt, and such deed is both at law and in equity regarded as a mortgage only.</p> <p>4. Same—mortgagee in possession a trustee. A mortgagee in possession is deemed by a court of equity a trustee, but this is only a constructive trust, raised by implication, for the purpose of a remedy to prevent injustice.</p> <p>5. Limitation—in equity. It is well settled that, where courts of law and equity have concurrent jurisdiction, a claim barred at law will be barred in equity, and even where the jurisdiction in equity is exclusive, if the remedy sought is analogous to a remedy at law, the limitation will apply.</p> <p>6. Where a bill was filed by the grantor of real estate against his grantee, alleging that the conveyance was a security for money loaned, and charging a sale and conveyance by the grantee to a stranger for a sum much greater than the indebtedness, and seeking to compel the grantee to account for the difference in the proceeds of sale or the value of the lot and the indebtedness, it was held, that the