People ex rel. Ford v. Irwin

Citations

• 18 Cal. 117

Syllabus

<p>A deed of land from A. to F., reciting the consideration at one hundred dollars, and a contract from F. not under seal, not acknowledged nor recorded, agreeing to reconvey the land to A. upon payment within a given time of $8,600, with interest at a specified rate, deducting the rents and profits of the land during the period limited for payment, were delivered between the parties at the same time. This contract contained a provision that it should be treated only as a contract to convey, and not as an acknowledgment that the deed'was intended as a mortgage. The real consideration of this deed was a pre-existihg indebtedness of $8,600 due from A. to F.: Held, that this deed is not in effect a .mortgage; that the question is one of intention to be gathered from the whole transaction; that, although the consideration of the deed was an antecedent debt, yet the legal inference is that the debt was discharged upon the execution of the deed, and the provision, in the contract to reconvey, as to not treating the deed as a mortgage, confirms this inference; and it was competent for the parties to insert such a provision.</p> <p>This contract in itself is in legal effect an agreement to sell, and the provision as to not treating the deed as -a mortgage must be regarded as one of the conditions upon which the contract -was executed, and does not take away or interfere with its efficacy as a contract, but simply repels any presumption from outside facts giving it an operation different from the intention of the parties.</p>