Hunter v. Hatch

Citations

• 45 Ill. 178

Syllabus

<p>1. Decree—can only bear six per cent interest. This court has repeatedly decided, that a decree can only bear six per cent interest under the law of this State.</p> <p>2. Same — must be reversed before it can be modified. It is the practice of this court, that, before a decree can be modified, the erroneous portion at least must be reversed. • After reversal, this court may modify it, or remand it with instructions.</p> <p>3. Mortgage—when transaction between pa/rties will be deemed a mortgage. Where between A and B the relation of debtor and creditor existed, evidenced by a certain bond of A, and they entered into an agreement, whereby the former conveyed to the latter certain lands to secure the payment of his indebtedness to B, and B executed a bond to C for the reconveyance of them to him, upon the payment of a sum specified in the bond, and surrendered the old bond to A, although it was well understood that C was not to pay any thing on such purchase, the intention being simply to change the form of the security,—held, that C took nothing by his purchase, but simply received the equitable title, in trust for A, .and that as between A and B the relation of mortgagor and mortgagee existed, and that equity would decree a reconveyance of the lands to A upon his paying to B the amount his due.</p> <p>4. Usury — cannot be molded by substitution of securities. Nor will such substitution of security, by taking up the old bond, and A executing a deed of the premises to B upon his giving to C a new bond for their reconveyance to him, so change the transaction, as to purge it of any usurious taint with which the original one may have stood charged; the proof, showing that this substitution of security was designed only to give a new form to the old transaction.</p> <p>5. Same — equity will regard the substance, not the form, of such agreements. When the original securities were tainted with usury, the substitution of others will hot remove the taint, such substitution