Plato v. Roe , 14 Wis. 453 ( 1861 )

By the Court,

Paine, J.

We agree entirely with the finding of the court below upon the facts in this case, and also with its first, second and third conclusions of law. It was claimed by the appellant, that parol evidence was inadmissible to show a deed absolute on its face to be a mortgage,. and reliance was placed upon the remarks of this court in Rasdall's Adm'rs vs. Rasdall, 9 Wis., 392, as sustaining that position. In that case it was intimated that the rule admitting such evidence, where there was no allegation of fraud, accident or mistake in the execution of the papers, could not be sustained upon principle, and we declined to adopt it in respect to a deed absolute on its face, which was sought to be shown by parol to be a trust deed. - But whatever our opinion may be as to the correctness of the rule referred to upon principle, we think it has been too long established and too generally recognized, to justify us in now departing from it. Wherever a series of decisions have established a rule of law, which becomes a rule of property, and upon the faith of which business transactions may fairly be assumed to have been conducted, courts ought not to change such rule, though they may believe it to have been established upon incorrect reasoning. If a change is to be made it should be done by the legislature, so that it may only affect subsequent transactions. The court below was right therefore in admitting the parol evidence explaining the nature of the transaction between these parties. And this evidence being admissible, it seems clear that the transaction was intended as a loan of money, and that the absolute form of the conveyance, together with the lease, were shifts by which the lender sought to cut off the equity of redemption and save himself the expense of a foreclosure. These forms were obviously imposed by the lender upon the borrower from the necessities of his condition. Even the authorities relied on by the appellant’s counsel to show this to have been a conditional sale, recognize the rule that where such is the case, equity will hold it to be a mortgage and allow a redemption. The facts here differ entirely from those in Conway's Ex'rs vs. Alexander, 1 Cranch, 218, and other similar cases relied on by the appellant. There the court said there “ was not a syllable in the cause intimating a proposition to borrow money or to mortgage property.” But here the defendant’s own evidence shows that he was applied to for a loan, and that the plaintiff desired to mortgage the property, and that transaction assumed the present form at his dictation. it cannot he necessary to refer to authorities to show ^hat where the conveyance is in reality a mortgage, the lender cannot, by any ingenious devices, or provisions inserted in the agreement, cut off the equity of redemption.

But we cannot agree with the fourth conclusion of law found by the court below, which gives the plaintiff the injunction prayed for unconditionally. On the contrary, we think it a case for the maxim that he who seeks equity must do equity. We do not think the plaintiff should be allowed to come into court merely to have his abstract right of redemption adjudged, without offering to exercise that right. It is true that if an ordinary mortgage had been given, the mortgagee could not have maintained ejectment. Still, if the mortgagor sees fft to execute the papers in such manner as to authorize the mortgagee to obtain possession at law, as was done here, we can see no reason why a court of equity should interfere in his behalf, except upon the usual terms of compelling him to do equity, and pay the amount really due on the mortgage, together with costs. As this will involve the necessity of a reference, we shall reverse the judgment, with costs, and remand the cause with directions to ascertain the amount due, and then to enter judgment for the plaintiff, provided he pays the amount due, with costs, within a time to be specified by the court, and otherwise that the complaint be dismissed.

The judgment is reversed, and the cause remanded accordingly.