51 Conn. 544 | Conn. | 1884
This is a suit to redeem an alleged, mortgage. The plaintiff claimed that an absolute deed which he had given to Mrs. Adams, one of the defendants, was in fact a mortgage. The court held otherwise and dismissed the complaint. The plaintiff appealed.
As between the grantor and grantee a court of equity-will treat a deed, absolute on its face, as a mortgage, where it appears, expressly or by implication, that such was the intention of the parties. The reason for this is, that the court will give effect to the real contract between the parties, where the contract is legal and is not contrary to the policy of the law.
But when the transaction on its face does not purport to be a mortgage, and it expressly appears that the parties intended that it should not be a mortgage, the court cannot treat it as such any more than it can make a contract for the parties.
Mrs. Adams held a mortgage on the land in question; the plaintiff applied for a further loan, offering as security an additional mortgage upon the same property. This she declined, but proposed to purchase the plaintiff’s interest in the property. The plaintiff assented to that proposition, and thereupon executed and delivered a deed of the property and Mrs. Adams surrendered the note secured by an existing mortgage. The plaintiff however was told that he could have his land again upon paying the note and the money paid at any time within six months.
The court below correctly regarded this transaction just as the parties did, not as a mortgage to secure a loan, but as a sale, with an option in the plaintiff to re-purchase at any time within six months.
There is no error in the judgment.
In this opinion the other judges concurred.