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LEXSEE 105 ILL. APP. 3D 706,AT 708
JOHN McGILL, Plaintiff-Appellee, v. JOHNNY BIGGS, Defendant-AppellantNo. 81-394Appellate Court of Illinois, Third District105 Ill. App. 3d 706; 434 N.E.2d 772; 1982 Ill. App. LEXIS 1715; 61 Ill. Dec. 417March 19, 1982, Filed
PRIOR HISTORY: [***1]
Appeal from the Circuit Court ofKankakee County; the Hon. WAYNE P.DYER, Judge, presiding.
DISPOSITION:
Judgment affirmed.
CASE SUMMARY:PROCEDURAL POSTURE:
Defendant creditorsought review of a judgment from theCircuit Court of Kankakee County(Illinois), which held that a debtrelationship existed between thecreditor and plaintiff debtor and thatthe debtor's warranty deed to thecreditor was a mortgage.
OVERVIEW:
After the debtor deededproperty to the creditor in return forthe creditor's payment of a funeralbill, the debtor continued to use theproperty and to pay the taxes. Whenthe debtor attempted to pay the debt,the creditor refused payment andrecorded the deed. Consequently, thedebtor brought a quiet title actionagainst the creditor, and the trialcourt held that a debt relationshiphad existed between the parties andthat the deed had been a mortgage.Thereafter, the creditor soughtreview. Under the circumstances, thecourt held that a debt relationshiphad existed between the parties andthat the deed had been intended tooperate as a mortgage and not a sale.In so holding, the court noted that:(1) the parties had discussedcollateral for the payment; (2) thecreditor had attempted to collect thedebt; (3) the consideration ascompared to the payback amount hadbeen in line with an installment loanagreement; (4) the consideration hadbeen inadequate; and (5) the debtorhad retained the property and had paidthe taxes. Finally, the court notedthat the deed's recording had beendelayed and that an agreement toreconvey had been part of thetransaction.
OUTCOME:
The court affirmed thejudgment.
CORE TERMS:
mortgage, funeral, deed,warranty deed, reconvey, conveyance,collateral, ownership, quitclaim deed,half-sister, died, deed absolute,inadequacy, grantor, owed,relationship existed, contract to pay,unsuccessful, repurchase, delivery,payback, falling, signing, intend,borrow
LexisNexis(R) Headnotes
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Construction & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN1] Every deed conveying realestate, which shall appear to havebeen intended only as a security in
the nature of a mortgage, though it bean absolute conveyance in terms, shallbe considered as a mortgage. Ill. Rev.Stat. ch. 95, para. 55 (1977).
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Construction & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN2] In order to convert a deedabsolute on its face into a mortgage,the proof must be clear, satisfactory,and convincing, and can come fromalmost every conceivable fact thatcould legitimately aid thatdetermination. Each case will dependupon its own special circumstances.
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Construction & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN3] In order to convert a deedabsolute on its face into a mortgage,direct evidence is not required. Infact, no particular kind of evidenceis required. However, a debtrelationship is essential to amortgage.
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Enforceability Real Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN4] The inadequacy of considerationis a potent or strong circumstancetending to show that a deed isintended to operate as a mortgage andnot a sale; and where consideration isgrossly inadequate, a mortgage isstrongly indicated.
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Construction & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN5] The fact that a grantor in adeed absolute in form remains inpossession of the property so conveyedand controls the property after theconveyance is evidence tending to showthat the transaction, in fact, is amortgage, as is also the payment oftaxes by the grantor after theconveyance. A grantee in anunqualified deed is entitled toimmediate possession and becomesliable for payment of taxes.
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Construction & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN6] Delay in recording a deed, whilenot of great significance standingalone, is a circumstance indicating alack of intention by a person to claimimmediate ownership.
Contracts Law > ContractInterpretation > General Overview Real Property Law > Deeds > Construction & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & Interpretation
[HN7] An agreement to reconvey is asignificant factor in distinguishingmortgages from absolute sales.Agreements made in writing at the sametime as the conveyance resolve anydoubt as to the character of theconveyance in favor of a mortgage.However, the agreement need not be inwriting.
COUNSEL:
Timothy C. Evans, of Chicago, forappellant.Mark R. Steffen, of Kankakee, forappellee.
JUDGES:
Justice Scott delivered the opinionof the court. Barry, P.J., and Alloy,J., concur.
OPINION BY:
SCOTT
OPINION:[*706]
[**772]
Plaintiff'smother, Ivory Anderson, died onOctober 7, 1977, leaving him as thesurviving
[**773]
joint tenant ofcertain real estate located inKankakee County, commonly known asRoute 3, Box 446, Momence, Illinois.Plaintiff desired to provide her witha funeral at the Wesley Funeral Homewith which his half-uncle, thedefendant, was familiar, and plaintiffrequested defendant's assistance inraising the funds necessary whichapproximated $ 1,500.Plaintiff asked defendant toaccompany him while he attempted toborrow the money at banks in Momence,Kankakee and Chicago. Defendantaccompanied plaintiff in his effortsto borrow the necessary funds for hismother's funeral but they wereunsuccessful.Plaintiff and defendant thenentered into an agreement whereby inreturn for defendant's paying thefuneral
[***2]
bill for plaintiff'smother (who
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