Tennery v. Nicholson

Citations

• 87 Ill. 464

Syllabus

<p>1. Mortgage—deed as a security. Where land is conveyed to another by a deed, absolute on its face, but to secure the payment of money, and the grantee gives the debtor a written agreement.to convey the land on payment of the debt, the conveyance will be a mortgage only, and its character will not be changed by giving a new note and taking a new agreement to convey, in which time is made of the essence of the contract, and which provides that in case of failure to pay on the day named, “ the intervention of equity ” shall be forever barred;—the relation of mortgagor and mortgagee will still exist.</p> <p>2. Same—equity of redemption, how defeated. A mortgagor’s equity of redemption in land can not be cut off by a provision in a defeasance to a deed given to secure a debt, making a failure to pay when due have that effect. It can only be done by a foreclosure.</p> <p>3. Consideration. Where a party, who had his land conveyed to secure a debt, and had failed to make payment when the debt matured, under the belief that his right to redeem was gone, promised to pay a sum greatly in excess of what he owed, and took another agreement for a deed upon payment of the latter sum, it was held, that such last promise was not binding on him for want of a consideration, his right to redeem not being gone.</p>