Smith v. Cremer

Citations

• 71 Ill. 185

Syllabus

<p>1. Evidence—parol, to show a deed a mortgage, or security. Although a form may purport to convey an indefeasible estate, it may, nevertheless, be shown to be a mortgage, or security only, by parol evidence.</p> <p>2. Mortgage—deed absolute in form—strict proof required. A party, alleging that a deed absolute in form was intended as. a mortgage only, is required to make strict proof of that fact. Having deliberately given the transaction the form of a bargain and sale, slight and indefinite evidence should not be permitted to change its character.</p> <p>3. Same—once a mortgage, always a mortgage. Where a deed absolute in deed is once shown to be a mortgage, it will retain that character until the equities of the mortgagor are foreclosed.</p> <p>4. Where the purchaser of land assigns his contract to a third part)-, to secure a loan of money to make a payment, and the assignee, on completing the payments, takes from the original vendor an absolute deed of conveyance, this will stand in the same condition as the contract—a mere security for the money advanced by him.</p> <p>5. Same—estoppel to deny an absolute conveyance. Where a party’s title was conveyed to another by an absolute deed, but, in fact, merely as a security for the payment of money' loaned, and he, on his application to be discharged as a bankrupt, swore that he had no interest in the land, it was held,, that the party so swearing was not thereby estopped from afterwards showing the true character of the transaction, there being no fraud in the same as originally made.</p>