Kent v. Agard
Wisconsin Supreme Court
APPEAL from the Circuit Court for Winnebago County. Ejectment. Plaintiff showed title in one Cown in 1848 ; mortgage from Cown to him in 1859 ; foreclosure of the mortgage, and referee’s deed to him, in 1865. He then introduced a deed of the premises, absolute on its face, executed by Cown td one Lasley, June 12, 1849, recorded as a deed on the day of its date; and offered to show, by the testimony of said Cown, that said deed was given as a security for an indorsement by…
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APPEAL from the Circuit Court for Winnebago County. Ejectment. Plaintiff showed title in one Cown in 1848 ; mortgage from Cown to him in 1859 ; foreclosure of the mortgage, and referee’s deed to him, in 1865. He then introduced a deed of the premises, absolute on its face, executed by Cown td one Lasley, June 12, 1849, recorded as a deed on the day of its date; and offered to show, by the testimony of said Cown, that said deed was given as a security for an indorsement by Lasley of Cown’s note; that said note had been paid in full by Cown before June, 1854; that in the month last mentioned…
1Opinion of the CourtPaike, J.
The plaintiff should have been allowed to show by parol that the absolute deed given by Gown to Lasley was intended as a mere security, and was consequently only a mortgage. That this may be done in some form of action, is not contested. And I can see no reason why it may not be done in an action to recover the possession of real estate. When the facts are proved, such a deed is a mortgage only, both at law and in *381equity. The rights of the mortgagor and mortgagee are precisely the same as though the defeasance were contained in the deed itself. The only difference is in the manner of proving…
2Cited by19 opinions
- Brinkman v. JonesWisconsin Supreme Court · 1878
- Jordan v. Estate of WarnerWisconsin Supreme Court · 1900
- Walls v. EndelSupreme Court of Florida · 1883
- Wakefield v. DaySupreme Court of Minnesota · 1889
- Smith v. PflugerWisconsin Supreme Court · 1905
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