Allen v. Frost

Bleckley, Justice. 1. The deed was plain and unambiguous. It conveyed absolutely, and even under the parol evidence had no element of a mortgage except that it was a security for a deb and attended with a right to redeem. What the instrument was, how it was to be construed, and what was its legal effect, were pure questions of law for the court, and so the court treated them. 2, 3. That an absolute deed made to secure a debt will hold good until the debt is paid, even against a homestead subsequently applied for and laid off in the premises, has been decided by the court quite often enough to settle it for the present as the law of this state. I can throw no new light on the question, and it is needless to repeat here what has already been several times announced as the basis of the decision. In proceeding to realize on his debt by obtaining a judgment, filing a deed, causing a levy, and trying to bring the property to sale, the creditor but pursued the mode pointed out to him by statute in such cases. Code, §§1970, 3654. 4. The court was correct in making the whole case turn with the jury upon the one fact of fraud or no fraud. There was nothing else for the jury to try. If the deed conveying the legal title was procured by fraud, the makers were not bound to abide by it. Fraud vitiates all it touches ; it voids all contracts. Code, §2751. But is the effect of a deed to be varied by parol evidence of a mere mistake, when the mistake is not pleaded, and there is no application to reform the instrument ? Surely not. This would leave the most solemn transactions of men in a wilderness of uncertainty and instability. Where there has been carelessness or inattention as to the contents of a document, on the part of those who execute it, at the time they sign and deliver it, without fraud of any kind in the opposite [663] party, to relieve them from the consequences when they apply for relief through full and regular pleadings adapted to the purpose, with fair notice to their adversary of what they allege, is favorable enough. They have no right to spring the question suddenly at the trial of a case, the pleadings in which give no premonition or forewarning of such a question. Here there was only the usual brief issue which is formed in a claim case — no expansion or amplification whatever. Judgment affirmed.