holding that transaction involving loan of money se cured by deed is enforceable as mortgage, not a conditional sale
How later courts described this case
- holding that transaction involving loan of money se cured by deed is enforceable as mortgage, not a conditional sale
Written by the judges who cited it.
The opinion
BOULDIN, J.
I concur in the opinion, but would not be understood as agreeing that parol evidence may be received to the effect that the transaction was a mere option to reclaim the land at the maturity of the note.
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The writing does not provide for any cancellation of the debt or surrender of the note on delivery of the deed. If it were silent as to this, it might be open to parol evidence. But it is not silent. The same writing expressly declares that after maturity, after the date for delivery of the deed under the contract, suit may be brought on the note, and the maker will pay the plaintiff’s attorney’s fees. No suit could be brought until after the date named for the delivery of the deed.
I therefore reserve for future inquiry any question of the right to vary these provisions by parol — a matter which is not discussed in the opinion.