27 Pa. Super. 336 | Pa. Super. Ct. | 1905
Opinion by
The material prayer of the plaintiff’s bill is for a decree that the defendant company convey to the plaintiff a lot in the bill
The defendant company acquired title to the property by a regular conveyance, and paid the purchase money therefor. At that time the plaintiff had no interest therein. She had neither paid the purchase money, nor given any obligation under which she was bound to take the property or pay its price. Her legal interest in the title began when she executed the contract the next day. No trust, either express or implied, arose at the inception of the title in the defendant company. It is alleged, however, that because of the verbal arrangement between the plaintiff and the company, the property was purchased for the plaintiff’s benefit, and that the purchase money
If the theory of a loan be accepted, the plaintiff was the real purchaser from the building and loan association, and the title was placed in the defendant company as security for the money advanced on account of such loan. In that view of the case the plaintiff is now attempting to convert a deed absolute on its face into a security for a loan, and that amounts to a mortgage. It was said by the court in Houser v. Lamont, 55 Pa. 311: “Probably nothing is better settled in this state than this: that a deed taken as a security for the loan of money is but a mortgage, and cannot by any form of words or other means be converted into an absolute conveyance; ” and in Huoncker v. Merkey, 102 Pa. 462: “ The law does not regard the intention, however, further than to inquire if the conveyance was meant as a security for the payment of money. That original intent being established, the conveyance becomes a mortgage, and the parties cannot by special agreement alter the rules of law governing such contracts.”
The plaintiff’s contention, too, implies that the defendant company took the title with her consent as security for her debt to it. It is not necessary that it should have been specifically intended that that amounted to a mortgage. The question is whether it was intended as security for money. If that fact be found, the law infers the former: Bisp. Esq., sec. 154. Can the plaintiff then maintain her position in view of the provisions of the Act of June 8, 1881, P. L. 84? That act declares: “ That no defeasance to any deed for real estate, regular and absolute upon ,its face, made after the passage of this act shall have the effect of reducing it to a mortgage unless the said defeasance is made at the time the deed is made, and is in writing, signed, sealed and acknowledged and delivered by the grantee in the deed to the grantor, and is recorded.” In considering the effect of this act the court said in Sankey v. Hawley, 118 Pa. 30 : “ The legislature intended to abolish utterly the oral defeasance; ” and in Molly v. Ulrich, 133 Pa. 41, by McPherson, J., adopted by-the Supreme Court: “ It is immaterial by what form of action it is sought to thus re
We think it might be shown, if it were necessary to a proper determination of the case, that the transaction between the plaintiff and the defendant company was not a loan. The allegation of the loan is expressly denied by the defendant. No obligation was given by the plaintiff to the company for the payment of money as a loan, nor as far as appears from the evidence was there any agreement under which an action for borrowed money could have been maintained on failure by the plaintiff to make payment in accordance with the terms of the contract of December 10. The transaction has rather the appearance of an arrangement adjusted to the ability of a person
In view, however, of the conclusion which we have reached, that the proceeding is an attempt to convert an absolute deed into a mortgage, it is unnecessary to pass upon the last proposition. The decree is reversed and the bill dismissed at the cost of the appellee.