The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1872-02-10

~ to the deed as being absolute. and not con.
disiopal Again obligation was taken BY
plaintiff in error for the payment of the money.
If designed to be mortgage, cor1L,on prudence
would have suggested n different course. AZ we
can not suppose a person would be willing TO
leave himself indefinitely in the position that he
coald be- compelled to convey or release the
premises from a mortgage ard set be wholly
unable to enforce payment.
| nor IL the Case 30 stroTG as where q person
! advances money, receives deed ana at the same
time gives back bond to the grantor for re-
conveyance That of itself inclines to the belief
that 1t was intended loan and security. But
not So al In this case, where the conveyance j.
made by person to whom the consideration is
paio, and the obligation to convey is given to
| another But it is in form an ordinary purchase
and RESALE. Taintor va. Keys, 43 Ills 332 Not
wlthstanding Iisders testimony, which j. 'uGcf-
mite, uncertain, and seems largely To consist Of
his conclusions, and not in statement Of t5cts
We think this prima fdcic sale has not been
shown to have been loan and security
Again, Tisdel swore it was a loan ~ twenty-five
per cent All of the facts the case contr 4diat
this sHpp,siton.
One years Interest at twenty-five per cent.
would De e trte over five hundred and ninety
nlnety-eis ht dollars In this the witness is evil
IDENTIFY mistaken, or has given a false version of
the transaction, and renders his ow4 eviUeuce
conflicting Even take the Lowest amount ne
names as haying Been paid, and one yelr's inter.
est at that rate would amount, principal and
interest, 10 $685. and At the higher to SO, $50
But Platts version il the more clear, consistent
and reason able Tisdel, having been so much mis-.
taksa in this matter We must in the light Of the
ether circumstances, conclude his evidence
shosid net control. Again, men who loan money
on real security do not usually advance Nh
amount fully equal to or greater thsn the value of
the property pledged, especially when the borrow
or is insolvent, 10 Rising WAS ia this case. This
is strong evidence that appellant really became
the purchaser, and this view Is strongly support.
cd by the other facts of the case.
Why should Rising, while occupying the prop
erty, have directed it to be assessed for taxation
to plaintiff in error if he considered himself Nc
the owner? Such an act 10 inconsistent with
ownership. Nor is IL usual for mortgsgors to
lease mu.tgaged premises from the MORTGAGE be.
fore default has occurred. The fact that Ri.-
ing took lease from plaintiff in error is strong
evidence that hs regarded the transaction as a
sale, with y privilege to rs.purchsse at en- ad-
vance. AL of these facts support the theory tina.
it was hot y mortgage, and render it almost Ger.
tain that it was sn absolute sale.
ANpir, Defendants ia error, in their answer TO
the cross bill, filed by plaintiff in error, deny
| that he gave TO them, or either OF them a bond
! for a reeonveysnce From this denial and from
the fact that they had fled their bill claiming
homestead right i'll the premises, and out of
which the bill grew, it seems apparent that
they we're then repudiating the transaction q.
- ianri gage, but insisting upon it as an absolute
| sale.
| From this snswer we must conclude that de.
ftnd.nts in error were eRdeavorDg to prevent
me TRANSACTION IRON being treated as a mortgage
or why deny the existence OF the bond, which is
now regarded a. the strongest evidence to stamp
it 0 'oan and security I, would hardly be eorit-
sole. aier such denial. to permit the bond to
bs asserted to es' .Dlish the opposite of what WAS
, then denied to exist in fact.
| Ii he parties understood and intended it TO be
4 mortgage, it is strange that neither Pratt or
| Msyers we're informed of the fact, when they
ware active agents in accomplishing what was
done. 1t lis uot reasonable to suppose that it
could have baen intended as mortgage and they
not have kaown the fact. One o. them made the
conveyance, and the other drew the papers, when
all of the parties were present, and their oppor-
tunities, it may bs inferred, were ample 10 have
known the fact if it had been true. Ii intended
IS mortgage no possible reason cosd have e4is-
ted lor concnnIing tne tact, but on the contrary,
it would seem but nstur,l thnt Rising would
| have desired TO have As l,rse u number of wit
uesses Of the fact as could have bsen readily pro-
| cared
AS to the refusal to grant the relief in the first
quit brought as to the homstead right, there was
no error IN the deors.. Even ii such right ex-
istsd when defend .nts in error were elected from
| the premises, il was abandoned and lost by re.
moving to ard acquiring asotker home in Me-
| oraska, where they had resided over two years
before asserting their claim. 1t cannot be held
under the statute that party may, after acq ur.
| ing new home in another state, still rely upon
| the statute az though his former home had not
been abandoned. The Court below, therefore,
did right in refusing to decree the claim to the
homestead, which il affirmed; but erred in de.
claring the deed to be mortgage, and for that
reason and to that extent the decree must bore
! ver.ed.
On the hcsriny OF the second cause, the record
aud decree IN the former suit were read in evi.
dsncs tosupport the bill, together with the former
mer depoiions, AID the deposition of Isdel az ain
taken, and the deposition Of Anson Rising. The
deposition OF plsintiH in orror was also read in
svldopce. A large amount Of evidence was also
heard on the question Of improvements and rent
ct the premises Tisdel swoars substantially to
tho same facts on the former trial. Risin
testified that IL ws,a loan st twenty-five pei
cent, and the deed WAS given ~ security. That
plaintiff IN error was to re.coRvey upon being
paid twepty.eght hundred dollars within one
year. That he sold plaintiff in error % acres of
the tract tor three hundred dollars, which was
applied TO the interest, and bond given for re-.
convey ance upon the payment Of $4,000 within
one year from its date. Now in this he is con.
tradicted by the bond which only requires the
payment OF S2,401. Thus it il seen that he is
mistaken, or has sworn recklessly for the purpose
of advancing his own interest Again, plaintiff
in error swsass it was sn absolute sale, and that
he purchased tho aore from Meyers, who
held bond for its convey nce, and for two huI.
dred dollars paid him he assigned the agreement