Kintner v. Blair

The question is, what was the character and effect of the transaction between Isaac M. Wildrick and the defendants at the time when these writings were made and delivered, as evidenced by the writings and the facts in evidence. The complainant claims that it was a case of a deed, absolute on its force, and a defeazance, constituting the transaction a mortgage. The defendants contend, that it was an absolute sale by Isaac M. Wildrick and purchase by them; and that the certificate, as it is called, was merely an independent agreement by the defendants to sell the lands to the said Isaac on his paying to them, at the expiration of one year, the consideration money paid by them for the deed, with interest, and such other claims as they might then have against him. I think the writings constituted a mortgage at the time when they were made and delivered. And that such was the intention of the parties seems clear, from the inadequacy of the consideration, shown in evidence, and the fact that Wildrick remained in possession without any lease, or agreement for the payment of rent, until after the time for payment had expired, and from other facts in evidence. Such being the effect of the writings, and the intention of the parties at the time they were made, the nature of the transaction was not changed by the subsequent leases given by Wildrick. It may be that he, and perhaps the defendants also, supposed that when the time for payment expired the agreement of the defendants to *494reconvey was no longer of any effect. He, and perhaps they, may not have understood, that writings of this nature, originally constituting a mortgage, remain a mortgage though default he made in payment at the time fixed.

Decree for complainant.