48 Neb. 243 | Neb. | 1896
This is an appeal from a decree of the district court for Douglas county, whereby a deed absolute in form, exe-
The questions presented for determination will be readily understood without a statement in detail of the issue made by the pleadings,, or of the facts disclosed by the record. It should, in justice to counsel for appellant, be observed that they concede the power of courts of equity to award proper relief against conveyances absolute in form, when -intended as security only; but they deny the application of that rule to the facts of the case at bar, on the ground, as claimed, that the deed in question was given, not as security, but in satisfaction of the indebtedness due from the appellee; that the agreement to reconvey was a mere condition subsequent operating upon an estate already vested, and in no sense a de-feasance essential to characterize the transaction as a mortgage. There is no doubt that the law recognizes a distinction between a deed intended as security only and one with a covenant to reconvey upon condition; but the failure of the courts to always observe such distinction has led to some confusion and apparent conflict of decision upon the subject. A safe and perhaps the most satisfactory test, in all such cases, is whether the relation of the parties to each other as debtor and creditor continues. If it does, the transaction will be treated as a mortgage, otherwise not (Robinson v. Cropsey, 2 Edw. Ch. [N. Y.], 138; Wilson v. Giddings, 28 O. St., 554; Jones, Mortgages, sec. 258); and if intended as a mortgage when executed, its character as such will not be changed by the mere effluence of time. (Tower v. Fetz, 26 Neb.,706; Nelson v. Atkinson, 37 Neb., 577; Morrow v. Jones, 41 Neb., 867; State Bank of O’Neill v.
Decree affirmed.