Printable Format58-2302. Deed as mortgage. When a deed of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such deed shall not be defeated or affected as against any person other than the grantee or his or her heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the register of deeds of the county where the lands lie.
History: G.S. 1868, ch. 68, ยง 2; October 31; R.S. 1923, 67-302.
Law Review and Bar Journal References:
Comment on the equitable mortgage, 5 K.L.R. 114, 117 (1956).
CASE ANNOTATIONS
1. Deed intended as a mortgage held to operate as mortgage. Bank of Glasco v. Springfield Ins. Co., 5 K.A. 388, 49 P. 329.
2. Actual notice of record of instrument of defeasance, sufficient. Pope v. Nicholas, 61 K. 230, 233, 59 P. 257.
3. Transaction held a conditional sale; when. Yost v. Bank, 66 K. 605, 608, 72 P. 209.
4. Warranty deed and contract giving right to redeem not mortgage. Martin v. Allen, 67 K. 758, 761, 74 P. 249.
5. Bond in ordinary form is not an instrument of defeasance. Holmes v. Newman, 68 K. 418, 420, 75 P. 501.
6. Where no continuing debt conveyance not a mortgage. Fabrique v. Mining Co., 69 K. 733, 737, 77 P. 584.
7. Deed shown to be only mortgage by parol evidence. Saylor v. Crooker, 89 K. 51, 54, 130 P. 689.
8. Deed and contract to reconvey evidencing a debt constitute mortgage. McGill v. National Bank of Topeka, 147 K. 605, 77 P.2d 944.
9. Cited; deed in form held mortgage; not within statute of frauds. Jones v. Jones, 161 K. 284, 292, 167 P.2d 634.
10. Deed held not mortgage where debtor-creditor relationship does not exist. Roberts v. Williams, 179 K. 498, 297 P.2d 206.