Union Mutual Life Insurance v. White

Citations

• 106 Ill. 67
• 1883 Ill. LEXIS 144

Syllabus

<p>1. Mortgage—deed of trust as a mortgage. A deed of trust is, in almost every respect, a mortgage. It, like a mortgage, is a mere security for money, or for the performance of certain undertakings by the grantor. It is a mere incident to the debt it secures, and upon which it depends and follows. When the debt is paid the mortgage is satisfied, but as long as the debt remains the mortgage exists, unless actually released.</p> <p>2. Same—once a mortgage always a mortgage. The rule of law is, that a conveyance once a mortgage is always a mortgage, until the debt is satisfied and extinguished or the equity of redemption foreclosed or released. In equity the mortgage still exists whatever form the parties may give the transaction, unless it is intended by both parties that it shall be released or extinguished.</p> <p>3. Same—deed absolute in form—when a mortgage. In equity a deed absolute in form is but a mortgage, if made as a security, and it will be treated and enforced as a mortgage, though the agreement for redemption therefrom rests only in parol, notwithstanding the Statute of Frauds.</p> <p>4. Same—extending time of payment after foreclosure—effect as giving the character of a mortgage to the title under the foreclosure. The holder of a debt secured by deed of trust assured the debtor, though not in writing, that he might have further time to pay the debt after foreclosure, and thereby induced him to let the property be sold, when, but for such assurance, the debtor might have redeemed before the sale. The creditor acquired the legal title at the foreclosure sale at less than one-fourth of the actual cash value of the premises. It was held, the creditor would still hold such title as a mortgage for the payment of the debt, the same as before the foreclosure, and the debtor might, in equity, redeem the property by paying the sum due, with costs, etc.</p> <p>5. Statute of Frauds—not allowed to protect a fraud. The Statute of Frauds was not intended to facilitate