Ardell v. Blamey

With due respect to my associates, I think the court in its opinion misconceives defendant’s position in this case. He does not base his defense upon the theory that the 1926 deed was not given as security, but grounds it upon the oral agreement made in 1928, by which the deed was to become absolute, i.e., what it is on its face. The fact of the recording of the 1926 deed at that time, viz., 1928, is strong evidence in support of that defense.

In my opinion, the proper rule to be applied in this case is that, “By an independent parol agreement the mortgagor may waive his rights under a deed…