Kent v. Agard

24 Wis. 378 | Wis. | 1869

Paike, J.

The plaintiff should have been allowed to show by parol that the absolute deed given by Gown to Lasley was intended as a mere security, and was consequently only a mortgage. That this may be done in some form of action, is not contested. And I can see no reason why it may not be done in an action to recover the possession of real estate. When the facts are proved, such a deed is a mortgage only, both at law and in equity. The rights of the mortgagor and mortgagee are precisely the same as though the defeasance were contained in the deed itself. The only difference is in the manner of proving the defeasance.

■ It may well be that where the grantee in such an absolute deed dies, his executors or administrators could not conclude his heirs by admitting the deed to be a mere mortgage, and by releasing it as such. The heirs may be entitled to a trial upon the fact, if they choose to contest it. But that trial may as well be in an action of ejectment as in any other. If the deed was in . fact only a mortgage, then the indebtedness secured by it was properly paid to the administrators; and, on proof of the fact by parol, their release takes effect, and shows that the mortgage was extinguished, and constituted no obstacle to the plaintiff’s recovery upon his legal title.

Indeed, it seems difficult to imagine any other action by which the. plaintiff could bring the question to trial. If he should bring an equitable action, and ask to have the deed declared a mortgage, it would seem to be a sufficient answer to tell him that if it was a mortgage in fact, he could prove it in an action at law, and it would then have only the effect of a mortgage. The authorities cited by the appellant show that such evidence is admissible in both classes of actions.

By the Court. — The judgment is reversed, and the cause remanded for a new trial.