Bishop v. Williams , 18 Ill. 101 ( 1856 )

Skinner, J.

This was a bill in equity by the heirs and legal representative of Bishop, against Williams, to redeem certain real estate, by their ancestor, on the 15th day of February, 1850, by deed absolute on its face, conveyed to Williams, for the consideration of four hundred dollars; and by Williams, on the 19th day of February, 1850, in writing, contracted to be reconveyed to Bishop, in two years thereafter, and upon the payment of eight hundred dollars.

The bill charges that the transaction was really a loan of money, and so intended by the parties, and that the deed and contract were all one transaction, and made to secure the repayment of the sum of four hundred dollars loaned, with usurious interest, and were intended to operate as a mortgage.

Williams answered (not under oath), denying the material allegations and charges of the bill, and insisting that the sale and conveyance were absolute and unconditional, and that afterward the contract of resale to Bishop was made as an independent transaction. The complainants replied, and a feigned issue, as to whether the transaction was a loan of money and mortgage, or am absolute sale and conveyance, was made and tried by a jury, as an issue out of chancery, who found the issue for the complainants, and the court, upon final hearing, rendered a decree accordingly.

The court overruled a motion for a new trial of the feigned issue, which decision, and the decision of the court rendering the final decree upon the hearing, are assigned for error.

This case was before this court upon a former appeal of Williams, and the principles of equity mainly involved in this record, were then examined and decided. Williams v. Bishop, 15 Ill. R. 553. It is unnecessary, therefore, to enter upon a discussion of the same questions. In that case, this court say, “ The real character of the transaction, and the true intention of the parties, maybe inquired into, and shall govern, notwithstanding they may have adopted the form of an absolute conveyance and bond for resale. And if such transaction was really a loan, and these instruments were executed to secure it, it is a mortgage; and once a mortgage, it so continues.”

The decision of the court overruling the motion for a new trial of the issue, involves the sufficiency of the evidence to justify the finding of the jury, and the law of the instructions given on the trial of that issue on the part of the complainants.

The instructions are as follows :

The jury are instructed, that if they believe, from the evidence, that the deed to Williams was intended as a security for the four hundred dollars, and not an absolute sale, and that the land was to be reconveyed to Bishop upon the payment of §800, two years thereafter, then they should find for plaintiffs.

That the fact that the plaintiffs did not put the bond upon record at the time it was executed, or that they did not tender to Williams any money at the expiration of the two years, does not necessarily establish that the sale was an absolute one.

The jury are instructed, that if they believe, from the evidence, that the transaction between Bishop and Williams was an advance of money, and that the deed and bond were executed to cover a usurious loan, they should find for the plaintiffs.

That if they believe, from the evidence, that the bond and deed were delivered at the same time, or that when the deed was delivered it was understood or agreed that the bond was to be executed, and that the bond was executed in pursuance of such an agreement, then the bond and deed are to be construed as forming one transaction, and the law declares the deed to be in the nature of a mortgage.

The jury are instructed, that if they believe, from the evidence, that at the time the deed was executed or delivered to Williams, it was agreed or understood by Williams that the bond was to be executed then, this-is a circumstance which the jury should consider, and from which they may infer that the conveyance was made as security for the advance of the four hundred dollars.

That if the jury believe, from the evidence, that the property in controversy was, at a fair valuation, worth a much larger price than §400, on the 15th or 19th of February, 1850, then this is a circumstance to be considered in connection with the other evidence, as favoring the claim of plaintiffs, that the transaction was a loan of money.

The instructions, in the sense evidently intended and understood by the jury, correctly state the law applicable to the case.

The evidence in the record and before the court upon the final hearing, warrants the judicial conclusion, that the transaction was, as alleged in the bill, a loan of money and security for the same, and not an absolute sale and conveyance ; and, without repeating and commenting upon the evidence, we' hold the final decree, under the sanction of the verdict, such an one as the equity of the case required.

Decree affirmed.