Ewart v. Walling

• Decision Date: 31 January 1867
• Citation: 42 Ill. 453,1867 WL 4953
• Parties: JAMES EWARTv.URIAH G. WALLING.
• Court: Illinois Supreme Court

42 Ill. 453

1867 WL 4953 (Ill.)

JAMES EWART

v.URIAH G. WALLING.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of Cumberland county; the Hon. AARON SHAW, Judge, presiding.

This was a bill in chancery, filed by Uriah G. Walling, in the Cumberland Circuit Court, against James Ewart. The bill alleges, that defendant was indebted to complainant, in the sum of about seven hundred dollars, and that about the 27th of June, 1861, and at that date, defendant and his wife, for the purpose of securing the payment of the money with interest, executed a deed of conveyance of certain town lots. That the conveyance purported to be absolute, but complainant at the same time executed a bond for the reconveyance of the lots, upon the payment of the debt and interest within three years from that date. That defendant in error still held the bond, and had remained in the possession of the property. The bill prays, that an account be taken of the amount of the debt then due, and that defendant be decreed to pay the money, and in default thereof, that the property be sold for its satisfaction.

Defendant answered the bill, and admits the indebtedness and the execution of the deed and bond, but denies that it was intended to be a mortgage. He insists that the deed was executed in full payment and satisfaction of the indebtedness, and that the deed was so received by complainant. The defendant was, by the agreement, to have the right of repurchasing the property by paying the original indebtedness, with interest, within three years from that time, and that complainant executed and delivered the bond to carry out the agreement. A general replication was filed to the answer.

The cause came on for hearing at the July Special Term, 1866, and the court found the transaction to be a mortgage; found the sum due and decreed its payment, and in default thereof that the premises be sold by the master to satisfy the same. Defendant prosecutes this writ of error to reverse the decree.

Mr. JOHN SCHOLFIELD, for the plaintiff in error.

Mr. HIRAM B. DECIUS, for the defendant in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This record presents the question whether the deed of conveyance in this case, absolute on its face, when considered in connection with the bond for a reconveyance of the property, executed at the same time, forms, in equity, but a mortgage, or does the transaction amount to a purchase and a resale of the property? The solution of this question depends, of course, as with all other agreements, upon the intention of the parties, and that intention must be ascertained from the written instrument and the surrounding circumstances. The condition to the bond provides that it shall be void in case defendant in error shall permit plaintiff in error to redeem the property, or any portion of it, by paying the amount of the debt and interest then due, at any time within three years, and shall thereupon convey such portion as may be redeemed. It is true, it recites that the lots were conveyed in liquidation of the debt. But when it provides for a redemption it would seem to have been intended as a security for the debt. But this, of itself, might not be sufficient to determine it to be such, were there no other circumstances attending the transaction.

The evidence shows, that, when the agent of plaintiff went to negotiate the transaction, defendant in error said he did not want the deed, but wanted the money; but, upon being assured that the property was worth three times as much as the debt, he consented to receive the deed and...