Thomas v. Board of Supervisors

Citations

• 67 Miss. 754

Syllabus

<p>1. Construction oj? Writing. Mortgage. Conditional deed. Extrinsic evidence.</p> <p>If the conditions and stipulations on the face of a conveyance of land leave it doubtful whether it was intended by the parties to be a mortgage, or a sale with the right to repurchase, extrinsic evidence is admissible to discover and effectuate the intent.</p> <p>2. Same. Provisions on face of instrument. Indicia of a mortgage.</p> <p>In construing such a conveyance made by a debtor to his creditor, the following provisions were held as tending to show it to be a conditional sale and not a mortgage : the release of the debt in consideration of the conveyance, and the absence thereafter of any personal obligation; a stipulation making time of the essence of the right to re-acquire the land ; the fact that the relation of mortgagor and mortgagee already existed and the evident purpose to change the relation; and, finally, decided benefits to accrue to the debtor from the change, and disadvantages to the creditor, which disadvantages would be even greater if the instrument were construed as a mortgage.</p> <p>3. Same. Features indicating a mortgage.</p> <p>And the following provisions of the instrument were held indicative of a mortgage and not a conditional deed: the right of possession reserved to the grantor; his obligation during the time possession was reserved to pay a certain sum as interest on the purchase price; the reservation of the right to redeem by repayment with interest of the exact sum recited as the consideration ; and the use of the technical term, redeem, to describe the right reserved to the grantor.</p> <p>4. Taxation. Money secured by mortgage. Right to repurchase.</p> <p>Since the court finds in this case that the instrument is a sale of land with the right to repurchase at. a fixed price, and the land itself having been taxed, the action of the board of supervisors in listing for taxation the purchase price, as so much money secured by mortgage, was error an