Saunders v. Stewart

By the Court, Whitman, J.: This action was brought to have a bill of sale of personal property absolute on its face declared a mortgage, and for an accounting. The referee to whom the case was sent found for appellant. The district court granted a rehearing, and upon the facts reported entered ' a decree for respondent. It is urged that the court # erred both upon the facts and in the law. The facts support the decree, and the law applied is too well settled in the United States to be disputed at this day. That an absolute conveyance, whether of real or personal property, can in equity be shown to be a mortgage, or to have been given only as security, by parol proof; that it was obtained or is vitiated by fraud, mistake or undue influence ; or that- the consideration upon which it depends is a loan, has been held by the federal court, and by the courts of last resort in New York, California, Iowa, Texas, Illinois, Mississippi, Wisconsin, Tennessee, Michigan, Connecticut, Pennsylvania, Indiana, North Carolina, Vermont, Ohio, Virginia, • and so far as the digests indicate, by those of several other states, the citations from which it is impossible to verify, owing to the fragmentary condition of the library of this state. So also it has been held directly in Carlyon v. Lannan, 4 Nev. 159, while in other cases the general principle has been approved. The doctrine is, that such evidence is not received to contradict an instrument of writing, but to prove an equity superior thereto. [204] The order and decree of the district court are correct, and they are affirmed.