67 Tenn. 27 | Tenn. | 1874
delivered the opinion of the court..
Complainants file this bill to set up their right to-a homestead in a house and lot in Chattanooga, conveyed by complainant, George Ehert, to defendant, H. L. Chapman, on the 28th of December, 1870, Ehert’s wife not having joined in the conveyance. They also seek to have the conveyance referred to declared to be a mortgage, and not an absolute conveyance. The chancellor held that complainants were not entitled to a homestead in the lot, and that the deed was to be-
“George Ehert, of Chattanooga, Tenn., has this ■day made me a deed to lot No. 17 Cowart street, and the property is mine, and I am at once to insure the same in some responsible fire insurance company, and am to have the rents of same for one year at least. In consideration, of the above I have this day paid off a lien existing on said property for $1,000, created by a deed of trust given by said Ehert to J. M. Armstrong to secure R. L. Walters for said sum. Said Ehert has executed . to me a note for $1,100, and if at any time after two months he*29 shall pay said note due in one year from this date, I agree to reconvey him the property. If said Ehert shall not pay said note within one year, and I shall keep the property and never reconvey to him, then I am to surrender said note.”
This paper was dated Dec. 28, 1870, and signed by Chapman. At the same time Ehert executed and delivered to Chapman his note for fl,100, payable at twelve months from date, which note Chapman still holds.
It is a settled rule that in all cases in which a pre-existing debt, or loan made at the time of the purchase, was the consideration of the deed of conveyance, the debt is considered as the thing contracted for, and the estate as collateral thereto.' This rule, however, is only applicable to cases where the estate was really intended as security for the payment of' money, and not to those when there was no precedent debt and no loan of money, but an honest design to purchase the property with a condition of repurchase. Hickrew v. Cantrell, 9 Yer., 180. If the-real intention of the parties can be gathered from the face of the paper, that intention will determine the-true character of the deed.
It is often exceedingly difficult to distinguish between a mortgage and a conditional sale. Judge Haywood said, in Bennett v. Holt, 2 Yer., 8, that it is generally discoverable from certain symptoms whether or not the intent was to loan money and to secure the payment thereof. If there is a striking disparity in value between the property conveyed and the money
Testing the case before us by this rule, and we are forced to the conclusion that the conveyance was made by Ehert with the intent to secure to Chapman the amount of money advanced to remove the lien
Upon the whole, we are of opinion that the decree of the Chancellor is correct, and we affirm it with costs.