Dooley v. Ahern

Mr. Presiding Justice Brown delivered the opinion of the court. 4. Mortgages, § 13*—when form does not render deed given as mortgage fraudulent. The fact that an instrument which is, in fact, a mortgage is, in form, a warranty deed does not render it either conclusively or constructively fraudulent in so far as it is based upon an actual consideration, even though, in the bill to foreclose it, after accurately describing the apparent form and real nature of the instrument, the complainant adds an alternative prayer that in the .event the deed shall be construed as a trust rather than a mortgage, then the levy of judgment and certificate of sale thereunder to a defendant creditor shall be set aside as a cloud on complainant’s title to the premises. 5. Mortgages, § 56*—when evidence insufficient to raise presumption of fraud in warranty deed given as mortgage. Where the evidence shows that a warranty deed, given as a mortgage was given to secure a bona fide indebtedness, the mere fact that the manner and circumstances in which it was given indicate an intention to prefer one legitimate debt to another is not sufficient to raise a presumption of fraudulent intent. 6. Mortgages, § 56*—when evidence sufficient to overcome possible presumption of fraudulent intent in giving warranty deed as mortgage. Any possible presumption of fraudulent intent which may arise from the fact that an instrument given as a mortgage to secure a debt was in form a warranty deed, and was given in circumstances indicating an intention to prefer the creditor, is overcome by evidence that the debt was bona fide and that the attempt was not to delay or defraud creditors but merely a legitimate and meritorious effort to prefer the grantee. 7. Time, § 4*—when fraction of a day to be considered. In a proceeding to establish the relative superiority of a warranty deed to property and a judgment entered on the same property, equity may take notice of the fact that the deed was recorded thirty-seven minutes before the entry of the judgment. 8. Homestead, § 101*—when evidence insufficient to show intention of owner not to return. On an objection to an allowance of a homestead estate in a debtor’s property, on the ground that he had left the property with no intention of returning, direct evidence of the debtor that this was his intention with evidence that he did, in fact, return cannot be overcome by merely alleging a suspicion that he did not intend to return. 9. Mortgages, § 114*—when prior to lien of judgment. A debtor who was indebted for bona fide loans, gave to the creditor to secure the debt a mortgage which was in form a warranty deed which deed was filed by the creditor for record in the office of the recorder of Cook county the day after it was executed. The same creditor had previously given another creditor a judgment note and on the day the deed was filed for record, but thirty-seven minutes later, the latter creditor filed a narr and cognovit, based on the note and a power of attorney, in the office of the clerk of the Circuit Court of Cook county, judgment was immediately entered thereon and execution was thereafter issued on the judgment, a levy under it was made and the premises were sold under the levy and bought by the judgment creditor, who received a certificate of sale which was duly issued and duly recorded. On a proceeding thereafter to foreclose the mortgage of the first creditor, it was held that his lien was prior to that of the second creditor.