38 Ill. 400 | Ill. | 1865
delivered the opinion of the Court :
The bill was filed in this case for the purpose of having the sheriff’s deed declared a mortgage, and to allow complainant to redeem from the deed made by McGoon to appellant. The evidence is clear and satisfactory, that the application to McGoon was for a loan, and that it was advanced as such. It is equally clear, that when McGoon became the purchaser at the sheriff’s sale, all of the parties understood that it was a loan. The sheriff failing to give a certificate of purchase at the time, McGoon did not then execute a bond for a conveyance to appellee, as it had been agreed he should, prior to his making the purchase. And through neglect and inattention the bond was never executed. But it continued to be regarded and treated by the parties as a mortgage; appellee continuing in possession until after the transfer of the title to appellant. McGoon received a payment on the money advanced at the sheriff’s sale by him, and at all times treated it as a loan and not as a purchase.
When appellant obtained the conveyance from McGoon, he had full notice of the nature of the transaction. He recommended McGoon to McNeil when the loan was effected, and the payment on the loan was made through him, and he paid for the conveyance the original debt and twenty per cent, interest, according to the original agreement. He, at the time, also agreed that if the appellee would refund the money which he paid to McGoon, with ten per cent, interest, he would convey the premises to him. Appellee was still in possession, occupying, and cultivating them as his own. There seems to be no question that appellant recognized the transaction as a loan when he received the conveyance.
The question is presented on this record, whether, as the transaction has assumed the form of a sale, a court of equity can effectuate the original intention of the parties, by declaring it a mortgage. It is objected that the agreement resting alone in parol, the statute of frauds will prevent it from being carried into effect. Under the 12th section of our conveyance act, and upon general equitable principles, this court has repeatedly held that deeds, in form absolute, might be shown to be mortgages in fact. Such has been repeatedly held, as in the case of Wynkoop v. Corning, 21 Ill., 570, it was said that courts are not estopped from looking into all the facts and circumstances of a deed absolute on its face, to ascertain whether a loan of, and security for, money was really intended. The same rule was adopted in the case of Tillson v. Moulton, 23 Ill. 628, and in Brown v. Gaffney, 28 Ill. 149. And these cases only recognize the rule as previously announced in Miller v. Thomas, 14 Ill. 428, and Dellahay v. McConnell, 4 Scam., 157.
The same rule has been repeatedly applied, even in cases of loans for the purpose of entering lands from the General Government, and the purchase made in the name of the lender with an agreement to convey upon having the loan and interest refunded. The principle that when the transaction assumed the form of a purchase of land from the Government as a security for the loan of the purchase money will be held a mortgage was decided in Dams v. Hopkins, 15 Ill. 519; Smith v. Sackett, 15 Ill. 528 ; Williams v. Bishop, 15 Ill. 553 ; Ferguson v. Sutphen, 3 Gilm. 547. This court has likewise clearly . announced the rule that parol evidence may be received to show that a deed absolute on its face was intended as a mortgage or a mere security for a loan of money. Purviance v. Holt, 3 Gilm. 394. And the rule was also acted upon in some of the cases before referred to on the other question.
These cases are decisive of this. If a person may show an entry at the land office, of lands belonging to the General Government, was in fact but a mortgage, there can not be a shadow of doubt, that a purchase at a sheriff’s sale may. In principle the cases are alike without a shade of difference. And the reason why such a rule is adopted, is to prevent fraud, injustice and oppression from being perpetrated.
The rule is of general application in a court of equity, once a mortgage always a mortgage. Being a mortgage in the hands of McGoon, his sale to appellant, with notice, by no means changed the character of the transaction. He took it, therefore, as a mortgage, and must be content to have it treated as such. Nor could the fact that he obtained possession by artifice or otherwise, change the relation of the parties.
Again it was held in the case of Dennis v. McCagg, 32 Ill. 429, that when a party claiming to be the agent for another, paid his own money and received an assignment of a certificate of purchase, and subsequently received a deed for the land, he was estopped from denying his agency. It was also held that he held the title for the benefit of those for whom he claimed to act as agent, and that it was also a security for the money thus advanced. This case is conclusive of the one under consideration on the grounds of agency. Appellant claimed when he obtained the deed from McGoon that he was acting as agent for appellee.
No exceptions having been taken to the Master’s report in the court below, it can not be questioned for the first time in this court. If unsatisfactory he should have excepted, and had his exceptions heard in the court below, and if not allowed, then he could have assigned error on the decree of the court. We are unable to discover any error in this record, and the decree of the court below must be affirmed.
Decree affirmed.
