Rubo v. Bennett

Mb. Pbesiding- Justice Seabs delivered the- opinion of the court. But one question is presented upon this appeal, viz.: whether, upon all the evidence, the deed in question, though absolute in its form, should be held' to be in fact a mortgage. The statute, section 12, chapter 95, Revised Statutes, provides that “ every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” The decisions of our Supreme Court are uniform in holding that where it clearly appears from the evidehce that the parties to a deed absolute in form have intended that it should operate as a mortgage only, to secure a debt, then the courts should hold it to be in effect a mortgage. Miller v. Thomas, 14 Ill. 428; Smith v. Cremer, 71 Ill. 185; Heald v. Wright, 75 Ill. 17; Clark v. Finlon, 90 Ill. 245; Bearss v. Ford, 108 Ill. 16. And there is a long line of decisions, from Pitts v. Cobb, 44 Ill. 103, to Story v. Springer, 155 Ill. 25, in which, while it has been held that under the peculiar facts presented in the respective cases the deed should be held to be absolute in its effect according to its terms, yet the well established rule is not departed from, but asserted—-that if it appear clearly and from satisfactory evidence that the intention of the parties was that the deed should have the effect of a mortgage only, that intention Avill be carried out by the courts. It is also held that a deed absolute in its terms should not be given a different effect unless the evidence is clear and satisfactory to Avarrant it. The rule of law governing is well settled. The question presented and determinative of the case is one of fact only. The weight accorded to the findings of fact by the trial judge, who has seen and heard the witnesses, is also to be considered in passing upon the question here presented. With due consideration for this, we have examined the evidence in the case with great care, and from it all we are compelled to reach a conclusion different from that of the learned chancellor who entered the decree. It is true that there are but two witnesses to the controlling facts; but one of them has testified to a state of facts inherently improbable, and the other is corroborated by all the surrounding and subsequent circumstances of the transaction. If the account of the transaction given by appellee is true, then this woman has deeded to him her property, worth at the least estimate of the witnesses, $4,200, and at the highest estimate $6,700, subject to $2,750 of indebtedness, for the sole consideration of $500, which sum of $500 and nearly a hundred dollars additional, the vendor at once proceeded, under agreement with appellee, the purchaser, to expend upon the property which she had sold. Mere inadequacy of price is not alone good ground for holding this deed to be a mortgage. Story v. Springer, 155 Ill. 25. But where no consideration whatever moves to the grantor, except money advanced to be expended upon the land, it is a fact tending very strongly to show that there was no sale. Aside from the matter' of adequacy of consideration for the deed, all the circumstances surrounding the transaction and the conduct of the parties subsequent thereto, lead to the conclusion that the parties intended the deed as security for the repayment of the $500 expended upon the land by appellee, together with an additional $500 for forbearance money. The undisputed evidence shows that at the time of the negotiations appellant was seeking a loan, not a purchaser; that she valued the land at much more than the sum made up by the $500 and the encumbrances, and, according to appellee’s own statement, still expected to realize such sum by a sale in the future; that appellee said to her that he cared nothing about the property in the matter of rents as long as she intended to take advantage of the option; and that he had nothing to do with the property until she should either “ have bought it or got out of it under that agreement;” that appellant obtained the extension of mortgages after the alleged sale and executed interest notes thereon; that she paid certain of these notes, and that she paid for insurance and taxes. We are inclined to think that appellee, while exercising his skill as a lawyer to give the transaction all the indicia of an absolute sale, yet did not himself regard it as constituting anything but security. In his examination as a witness, the following occurred: “Q. You wanted $500 for the use of your $500 for a year, is that the idea %' A. Ho, assuming the risk.” All of these admitted facts are wholly inconsistent with the theory that appellant had parted with, and appellee had acquired, both the legal and equitable ownership of the •land. It is clear that, according to the ostensible transaction, the mortgages were assumed by appellee as part of the purchase money. The amount of the mortgages and the $500 together make $3,200, the expressed consideration of the deed. If the transactions were in reality a sale, appellee and not appellant thereafter bore the obligation to pay these mortgages and the interest notes for interest thereon. Such would be the obligation arising, as a matter of law, from the mortgage indebtedness being treated as a part of the consideration. And as a matter of fact, appellee testifies that he did assume these mortgages. In answer to the question, “ What is the amount you assumed ? ” he testified “ $2,745.27.” And yet appellant proceeds thereafter, with the apparent acquiescence of appellee, to care for the extension and payment of interest upon this indebtedness assumed by appellee. The testimony of appellee, that an absolute sale was intended, is, as we view it in the light of all the surrounding circumstances, incredible. If the testimony of appellant be taken as true, as we think it should be in view of all the facts and circumstances proved, then appellee could have enforced the payment of his loan of $500 (without the usurious interest contended for) in an action at law. While, perhaps, no one of these facts, inconsistent with the theory of an absolute sale, would be sufficient of itself to constitute the clear and satisfactory showing which the law requires, yet each is entitled to consideration, and together they present a strong case. The fact that negotiations for a loan were pending when the deed was made, is to be considered. Fiedler v. Darrin, 50 N. Y. 437; Morris v. Nixon, 1 How. 118; Davis v. Demming, 12 W. Va. 246. The fact that the grantee retained possession of the premises is to be considered. Clark v. Finlon, supra. We do not regard the existence of a lease, which neither party ever treated as operative, as affecting the fact of possession by appellant. The circumstances of appellee leaving appellant to bear the burden of loan extensions, interest payments and insurance, are all entitled to consideration. Miller v. Thomas, supra, wherein the court said: “ In cases of this sort the real character of the arrangement may as often be gathered from the nature of the transaction and character of the circumstances as from the express declaration of the parties.” Inadequacy of consideration, though not alone controlling, is to be considered. Story v. Springer, supra. And in case of doubt existing from all the surrounding circumstances, a court of equity will lean to the holding that it is a mortgage rather than a sale. Conway v. Alexander, 7 Cranch, 218. In that case it was held that the facts established an absolute sale; but the court held, as a rule applicable to the determination, that “ the want of a covenant to repay the money is not complete evidence that a conditional sale was intended,” and “ doubtful cases have generally been decided to be mortgages.” The decision in Clark v. Finlon, supra, is very much in point, and also the decision in Jasper v. Hazen, 23 L. R. A. 58. While each case of this class, where it is attempted to be established that a deed absolute in form is in reality only a mortgage, must of necessity be determined by the facts of the individual case, measured by the rule of law that th¿ evidence must be clear and satisfactory to warrant a court in holding the facts established, yet the cases above cited are enough alike in the facts presented, to be especially applicable to the case here considered. We hold, therefore, that the findings and decree of the trial court are manifestly against the weight of the evidence. The decree is reversed and the cause remanded.