158 Ill. 209 | Ill. | 1895
delivered the opinion of the
court:
In its opinion disposing of this case, the Appellate Court says:
“While the interest of the complainant in the property was, when she conveyed the same to appellant, one which probably could have been sold for some money, it is manifest that as a pure matter of business no person would then loan to the complainant anything upon the security of these houses. That marriage is a good consideration is undisputed. The principal question of law involved in this case is what kind and amount of evidence is required to convert a deed absolute upon its face into a mortgage, —a mere security. That such evidence must be clear and decisive, and that loose, indefinite or inconclusive evidence is insufficient, is well established. Sutphen v. Cushman, 35 Ill. 186-193; Knowles v. Knowles, 86 id. 1; Wilson v. McDowell, 78 id. 514; Low v. Graff, 80 id. 360; Sharp v. Smitherman, 85 id. 153; Bentley v. O’Bryan, 111 id. 53-61; Helm v. Boyd, 124 id. 370.
“In Sutphen v. Cushman, 35 Ill. 186, the court, speaking of a convejmnce absolute upon its face, say: ‘The right to redeem lands so conveyed cannot be established by simply proving that such was the understanding on which the deed was executed, because equity, as well as the law, will seek for the understanding of the parties in the deed itself. The right must be one paramount to and independent of the terms of the deed, as well as of any understanding between the parties at the time it was executed. ’
“The evidence in the present case, given on behalf of the complainant, that the quit-claim deed given to Jetta May was received by her as well as given by the complainant as a mortgage only, a mere security for money that she might thereafter advance, is far from being clear or decisive.”
After a full discussion of the evidence on both sides, which need not be here repeated, but may be found in May v. May, 55 Ill. App. 488, the opinion of the Appellate Court closes as follows:
“Substantially all the material testimony from disinterested witnesses sustains the position of the defendant. The circumstances surrounding the transaction are in entire accord with such position, while the evidence for the complainant in nowise is equal to the requirement of the law. An absolute conveyance cannot be set aside and turned into a mere security for disbursements made after the deed was executed, upon evidence such as the complainant had produced in this case, when such evidence is overturned by so great a preponderance as here appears. We are not unmindful that the chancellor who sees and hears the witnesses is better able to judge of their credibility than a reviewing court can be, but it is not in this case a matter of mere credibility of witnesses that is to be considered; it is rather the character—the substance—of the testimony, be the witnesses ever so credible. That character—that substance—in this case, in the face of the undisputed facts, comes far short of being of that clear and convincing nature the law requires shall be produced ere an absolute conveyance is thereby pronounced to be but a mortgage. The decree of the Superior Court is reversed, and the bill here dismissed for want of equity.”
We concur in the views thus expressed by the Appellate Court, and its judgment is accordingly affirmed.
Judgment affirmed.
