Shays v. Norton

Citations

• 48 Ill. 100

Syllabus

<p>1. Deed—when, treated as a mortgage. Where a deed of conveyance Is absolute on its face, it will be held a mortgage, only when it appears that it was the intention of the parties that it should operate as a security for money loaned, or due, at the time when it was executed. But to give it that effect, it should satisfactorily appear that such was the design of the parties. Loose and uncertain evidence, or contradictory evidence, which preponderates in favor of the absolute character of the deed, will not suffice.</p> <p>2. Attorney in tact—his powers. Where a party purchases land, subject to a deed of trust, given to secure a debt, and gives the debtor a power of attorney to sell and conveyit, and to avoid the expense of a sale by the trustee, he agrees with his creditors that he shall purchase the property in satisfaction of the debt, and the property is so conveyed: Held, that the title passes to the creditor.</p> <p>3. Chancery—jurisdiction, bill to quiet title. Where a creditor purchases real estate of his debtor, in satisfaction of his debt, but jas never taken possession of the property, and the vendor is claiming to be in possession, and is asserting that the conveyance is but a mortgage and he has the right to redeem the lands, the purchaser may maintain a bill to quiet his title. If, however, he was claiming to have a legal title, held by the vendor in possession, removed, and his legal title established, the remedy at law, in such a case, being complete, the court could not entertain jurisdiction in chancery to afford such relief; but it is otherwise in settling purely equitable rights.</p>