Opinion of the Court.

possession, which was notice of his claim. Complainant claims, as the purchaser of Talmadge's title, the right to redeem, and offers to pay the principal and interest on the notes upon being allowed to do so by decree. Prays an account and relief.

John S. Green answered, and denies that Thomas R. Green sold the land warrants, or employed Mix to do so, on credit or otherwise; denies that Mix sold Talmadge any warrants; alleges that when these lands were entered Green was in the business of entering and selling for his own profit, and Mix was employed for a like purpose; that Mix entered the land with warrants which belonged to Green, and in which Talmadge had no interest, and with the understanding and belief that Green should be the purchaser and owner thereof for his sole use and benefit; that after the lands were entered, he admits the bonds were given to convey the same as therein provided; admits the payment on the note; the death of Thomas R. Green; the heirship as stated in the bill, and that respondent became administrator; that Mix conveyed these with other lands to the heirs of Green; denies all knowledge of any claim by Talmadge to the lands; admits the conveyances among the heirs in pursuance to an amicable partition; alleges the death of Elizabeth Green; denies tender by Talmadge, and insists that he had forfeited all rights before Mix conveyed to the Greens, and the contract had been treated as abandoned.

Admits that Mary Ann Green commenced the ejectment suit, as alleged, and charges that she recovered a judgment against Talmadge for the lands; that he has no knowledge of the alleged mistakes, or whether Talmadge had fenced the lands, or that he claimed the lands. Denies all right to redeem. A bill of revivor was subsequently filed against James G. Dwen, executor of John S. Green, who had died after the suit was brought. On the hearing, the court decreed the relief prayed, and this writ of error is brought to reverse the decree.

The tender does not seem to have been proved. The only allegation that is contested, is, whether the charge of a sale of the warrants which the lands were entered with has been

Opinion of the Court.

proved. This entire controversy turns on that question. If the warrants were not sold, then the transaction cannot in any sense be regarded as a loan, or an indebtedness, and a security for its payment. On the face of the transaction it is a sale and not a mortgage. But courts of equity will look beyond the forms with which transactions are clothed, to ascertain the true nature of the transaction. And, although it be a sale in form, if it clearly appears to have been a loan or a debt and security for its payment, it will be held and treated as a mortgage. The parties having, however, deliberately given the transaction all of the forms of a sale, slight, indefinite or unsatisfactory evidence should not be permitted to change its character. It should only be by proof which clearly shows that the intention of the parties was that it should be a mortgage and not a sale.

In this case, Mix, who transacted the whole business, and is familiar with the transaction, says that the land warrants were sold and located in his name, which was done at Green's instance, supposing that by that means better prices could be obtained. That Talmadge applied to him for the purchase of the warrants, and on the 15th of September, 1849, he sold him two for 160 acres each. For one he was to pay $156.25 in seventy days; for the other $201.25, in one year. That he gave to witness his notes for those sums; that the notes were to be secured by the location of the warrants in the name of witness. That on the 26th of the same month, he sold to Talmadge a warrant for forty acres for the sum of seventy-five dollars, which was secured in the same way, by the title to the land. That the lands were so entered, and he gave to Talmadge bonds for the conveyance of the lands, upon payment of the notes. That he only paid sixty-five dollars at one time, and eighty-one dollars at another. That Talmadge never made any tender to him, but, on the contrary, he pressed payment for years without success. That Talmadge came to him, and said he desired to enter the lands, and wished to negotiate with witness to enter them for him. That it was then agreed that witness should make the entries, and give him a contract. That

Opinion of the Court.

the notes were given after the entry of the land. That the price was agreed upon before the entry was made, and the notes and bonds given afterward. That the terms were agreed

upon before the entry.

Had Mix used money to enter these lands under the same agreement proved in this case, it is not probable that any one would, for a moment, doubt that it was a loan and security for the payment. Nor could any other conclusion be arrived at, if Mix had delivered these warrants to Talmadge and he had made the entries under their agreement. The price of the warrants had been fixed, the time of payment agreed upon, and the mode of securing the payment specified before the entry was made. It appears that the transaction will bear no other construction but that it was a sale of the warrants, and the entry of the land in Mix's name was intended as a security. Mix does not say that he or Green desired the land; on the contrary they were selling land warrants, and had adopted this mode of securing the payment of their price when sales were made on time, as Mix says they generally were. We are compelled to hold, from the evidence in the case, that the parties intended at the time that this should be a sale of the warrants for the sum for which the notes were given, and the entry of the lands should be as a security for their payment, and in equity it must be treated as a mortgage.

And the maxim, "once a mortgage always a mortgage," must apply in this case. The rights of innocent purchasers or creditors have not intervened. Plaintiffs in error hold as volunteers, and not as bona fide purchasers. They paid no consideration but received the conveyance as heirs of Thomas R. Green, for whom Mix held the premises in trust, subject to Talmadge's equity of redemption. The latter, then, had the right to redeem, and Burnap, by his purchase under execution, succeeded to all of his rights. If plaintiffs in error had desired to change the relation of the parties they should have filed their bill to foreclose. But they did not, so far as we can see, even return Talmadge's notes, or give him notice that they considered the contract abandoned, as they allege it was. While that would

Syllabus.

not have operated as a foreclosure, it would have shown that they were relying upon an abandonment of the transaction.

It is urged, that there is no evidence of a tender. We do not understand that the law requires a mortgagor to make a tender before he can compel a redemption. All that is necessary is, that he pay the sum found by the court to be due within the time limited by the decree. A court of equity is not bound by any fixed rules in relation to the tender of money, but it will not allow the ends of justice to be perverted or defeated by the omission of an unimportant or useless act, which nothing but a mere technicality could require. Webster v. French, 11 Ill. 254; Barnard v. Cushman, 35 id. 451. A tender being unnecessary to give the right, the allegation of the tender unproved could not be held to defeat the previously existing right. The evidence fully sustains the decree of the court below, and it must be affirmed.

Decree affirmed.

44 141 30a 603

44 141 162 160

44 141 59a 91

AMOS HART

v.

THOMAS WING.

1. FRAUD—jury to judge whether transaction fraudulent. The court will not disturb the verdict of a jury upon the bona fides of a transaction properly submitted thereto.

2. SALE-delivery of property sold. Upon a sale of personal property no other delivery is necessary than such as the article sold is susceptible of.

WRIT OF ERROR to the Circuit Court of Livingston county; the Hon. CHARLES R. STARR, Judge, presiding.

The case is sufficiently stated in the opinion of the court.

Messrs. FLEMING, PILLSBURY & PLUMB, for the plaintiff in

error.

Mr. A. E. HARDING, for the defendant in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

It appears by the testimony in this record that a portion of the corn in controversy was bought by Mott with Wing's money, and Wing, therefore, had an equitable right to be protected as a creditor, and to be preferred by Mott over other creditors not so situated. Mott was in insolvent circumstances, and parties were engaged in removing this corn when he transferred it to Wing. The bona fides of the transaction was fairly submitted to the jury on the evidence and on the instructions, and they have found it was not a fraudulent transaction, and we perceive no grounds to doubt their conclusion or to justify an interference with their verdict.

Upon the question of delivery of the corn, it appears it was in cribs, in the ear, and was susceptible of no other delivery than that which was made and accepted. Such possession of it was given to Wing as its nature admitted. An actual removal of the entire mass of corn in the crib, or of any other cumbrous article, is not necessary to constitute a delivery and change of possession. May v. Tallman, 20 Ill. 443.

The judgment must be affirmed.

Judgment affirmed.

MADISON Y. JOHNSON

v.

J. RUSSELL JONES et al.

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1. PERSONAL LIBERTY-how a citizen may be deprived thereof power of the President of the United States, in that regard. A citizen has a right to his personal liberty, except when restrained of it upon a charge of crime, and for the purpose of judicial investigation, or under the command of the law pronounced through a judicial tribunal.

2. The President of the United States has no rightful power, in time of peace, to cause a marshal to arrest a citizen of one State, without process, and without any charge of crime legally preferred, and convey him to another State, and there imprison him, without judicial writ or warrant, in a military fortress.