46 Wis. 430 | Wis. | 1879
The learned counsel for the plaintiff below is entirely right in saying that it is the established doctrine in this state, that, whatever may be the form of the conveyance made as a security for a loan of money, equity will treat it as a mortgage. Even though the conveyance be a deed absolute on its face, yet by parol evidence it may be shown to have been originally intended as a mortgage. The rule which excludes parol testimony to contradict or vary the terms of a written instrument, is held not to apply in such a case so as to prevent a court of equity from inquiring into the real nature of the transaction, and giving effect to the intention of the parties. The plaintiff seeks to take advantage of this rule of law, and have the deed which was executed to the defendant John Butler, on the 26th of May, 185T, by George 0.
But it was claimed by the learned counsel for the plaintiff, that the case, in all its essential facts, was strikingly similar to Wilcox v. Bates, 26 Wis., 465, and is ruled by that decision. We think this is a mistake. In Wilcox v. Bates the court was entirely satisfied, from the proof, that the title to the plaintiff’s property was taken by Bates in pursuance of an agreement that his advances were to be made as a loan, and that he was to hold the title merely as security for their repayment. Bates was considered as a purchaser of the tax certificates, the sheriff’s certificates of sale upon judgments, and the title under the foreclosure of the Naiden mortgage, for the benefit of Wilcox. The court was “ unable to avoid the clear conviction ” that Bates acquired the title merely as security for advances made to discharge the incumbrances, and under a contract with the plaintiff that he might redeem. Assuming that this view was correct, and that such a contract existed, it would have been sanctioning gross misconduct on the part of Bates, to permit him to repudiate the contract and keep the property. In the present case, we are unable to find any satisfactory evidence showing that the deed was made as a security for present or future advances. Surely the relation of debtor or creditor did not exist when the deed was executed, and it is difficult to say that there was a present agreement for a future loan and reconveyance of the property. So, upon the whole case, we think the circuit court was right in holding
By the Court. — The judgment of the circuit court is affirmed.