Montgomery v. Spect

Citations

• 55 Cal. 352

Syllabus

<p>Mortgage—Deed Intended as a Mortgage—Definition.—Whether a deed absolute in form is a mortgage, is a question of intention, to be determined from all the facts and circumstances of the transaction, taken in connection with the conduct of the parties after the execution of the deed.</p> <p>Id.—Id.— Presumption.—In such cases, in order that the deed be held a mortgage, the central fact to be found is the existence of an indebtedness at the time of the transaction, (forming the consideration of the deed) and a continuation of the relation of debtor and creditor. If this is found, the inference is, that the deed was not made to transfer the title, but to secure the debt.</p> <p>Id.—Id.—Ejectment—Judgment.—In an action of ejectment, the defendant set up the defense that a deed from him, under which the plaintiff claimed, was in reality a mortgage; and the Court having found to that effect, the judgment was that the plaintiff, upon the payment of the debt within a specified time, should convey to the defendant, and that if the defendant, within the time specified, failed to pay the debt, the affirmative relief demanded by him should be denied, and his bill asking for the same be dismissed, and upon appeal the judgment was affirmed.</p>