Taintor v. Keys

Citations

• 43 Ill. 332

Syllabus

<p>1. Mobtgage—a deed in form—when. It is the settled doctrine in equity, that the form of a transaction will not be regarded, but the intention of the parties must control. If the transaction was in fact a loan or security for money owing, although the conveyance be absolute on its face, still it will be treated as a mortgage, but that fact must be satisfactorily shown.</p> <p>2. Chancery—sworn answer. Where a bill charges a deed, absolute on its face, to be a security for a loan of money, and the answers, under oath, clearly and distinctly deny the allegation, and insist, that it was a sale, the answers are evidence and must be overcome by preponderating evidence before relief will be granted.</p> <p>3. Where a person, holding a certificate of purchase, assigns it to a third person, and he agrees, if the debtor will pay him a specific sum, by a day named, that he will convey him the property, and give him a bond for the purpose, this is in form a purchase from one person and a sale to another. It is unlike a loan of money or pre-existing debt, and the debtor conveys real estate by a deed absolute on its face, and the creditor gives a bond for a re-conveyance on the payment of the money. In such a case, the transaction would appear to be a conveyance with a defeasance.</p> <p>4 Evidence — to overcome a sworn answer. Where a sworn answer denies that the transaction was intended as a mortgage, there must be full proof, that it was a loan and security, to overcome the answer; loose and indefinite statements are insufficient.</p>