Kelley v. Leachman
Idaho Supreme Court
APPEAL from District Court, Hez Perces County. A deed absolute in form may be a mortgage by there being a written defeasance, or a verbal defeasance, or both,' (Smith v. Smith, 80 Cal. 323, 21 Pac. 4, 22 Pac. 186, 549; 2 Devlin on Deeds, secs. 1100, 1102, 1103; 4 Kent’s Commentaries, 12th ed., *142, *143.) The intention of the parties controls, and, in case-of doubt, courts always incline to and determine the instrument to be a mortgage.
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APPEAL from District Court, Hez Perces County. A deed absolute in form may be a mortgage by there being a written defeasance, or a verbal defeasance, or both,' (Smith v. Smith, 80 Cal. 323, 21 Pac. 4, 22 Pac. 186, 549; 2 Devlin on Deeds, secs. 1100, 1102, 1103; 4 Kent’s Commentaries, 12th ed., *142, *143.) The intention of the parties controls, and, in case-of doubt, courts always incline to and determine the instrument to be a mortgage. (2 Washburn on Real Property, 60, 66; Russell v. Southard, 12 How. 139; Peugh v. Davis, 96 H. S. 331.) A sale in form, but which in fact and substance may be…
1Opinion of the CourtMorgan, J.
On the twenty-sixth day of July, 1883, the defendant, S. S. Leachman, was the owner of, and in possession of, the north half of the southeast quarter of section 27, and the west half of the southwest quarter of section 26, in township 35 north, of range 5 west, of Boise meridian, in Nez Perces county. On that day he gave the plaintiff. Madison *394A. Kelley, a deed of conveyance of the said tract of land, absolute on its face, with covenants of warranty, for the consideration of $1,661.39. The deed was made, executed and delivered in the forenoon of said day. In the afternoon of the same day, in…
2Cases cited17 opinions
- Russell v. SouthardSupreme Court of the United States · 1851
- Brinkman v. JonesWisconsin Supreme Court · 1878
- Coburn v. BrooksCalifornia Supreme Court · 1889
- Smith v. SmithCalifornia Supreme Court · 1889
- Taylor v. McLainCalifornia Supreme Court · 1884
12 more not listed; retrieve them via the Exa API.
3Cited by20 opinions
- Bergen v. JohnsonIdaho Supreme Court · 1912
- Clinton v. Utah Construction Co.Idaho Supreme Court · 1925
- Brown v. BryanIdaho Supreme Court · 1898
- Dickens v. HestonIdaho Supreme Court · 1933
- Kelly v. LeachmanIdaho Supreme Court · 1893
15 more not listed; retrieve them via the Exa API.