28 Ill. 277 | Ill. | 1862
We think the proof in the record abundantly establishes the fact, that the deed from appellant to his father, Jacob P. Shaver, was a security for money loaned merely, and though absolute on its face, was in fact but a mortgage; and this may be established by parol proof.
Such has been the ruling of this court for a number of years, and it is now too late to combat it. Tilson v. Moulton et al., 23 Ill. 648, and cases there cited.
That Woodward had notice of this fact, that the deed to Jacob was intended as a mortgage only, is satisfactorily shown by the testimony in the cause, and with this knowledge he, in a fraudulent manner, attempted to get the absolute title to the land, through a conveyance from the mortgagee, and then deny to' the complainant any right in him to redeem the estate.
From the evidence, we are constrained to believe Woodward acted fraudulently in making the purchase, and misrepresented the facts to the father, to induce him to sell the land to him.
The reason operating with the Shavers why the deed should be absolute on its face, is quite satisfactory. Both father and son desired another son should come out West and settle on this land; so it was agreed, if either of his sons should be willing to go upon the land and live on it, he might pay the father the money loaned, and the father would convey it to him. If, however, neither of his sons would come out and settle upon the land, then the deed was to be considered simply as a security for the money advanced by the father, and complainant should have the right to redeem.
A parallel case to this is to be found in 26 Ill. 158, Dement et al. v. Bonham.
The decrée is reversed and the cause remanded, with instruction to set aside the deed from Jacob P. Shaver to Woodward, and cancel the same, on complainant paying to said Woodward one thousand dollars and interest, at six per cent, per annum, from May 15, 1851, until the day said sum shall be paid, from which payment the said deed shall be cancelled and held for nought.
Decree reversed.
