A deed which is absolute on its face, as is the deed in the instant case, may in fact be an equitable mortgage; a court may look beyond the absolute, unconditional terms of the conveyance so as to give effect to the intention of the parties if that intention is to create an equitable mortgage. Ratermann v. Striegel, 273 S.W.2d 304, 306 (Mo. 1954). However, a presumption exists that an absolute unconditional conveyance of land is a deed as it purports to be, that is, a deed, and not an equitable mortgage. Parrish v. McDaniel, 358 S.W.2d 32, 35 (Mo. 1962). One must set forth clear, cogent and convincing proof in order to establish that a deed which is absolute on its face is actually an equitable mortgage. Ratermann, 273 S.W.2d at 306.
Thus, [plaintiffs by the "Agreement"] did not recognize the `continued existence of a debt.' (Bobb v. Wolff, supra [148 Mo. 335, 344, 49 S.W. 996, 998 (1899)]). The `AGREEMENT' failing, as it did, to impose a binding obligation on [plaintiffs] to pay any amount, is `decisive proof' (Parrish v. McDaniel, supra [ 358 S.W.2d 32 (Mo. 1962)]) that the ... warranty [deed] [was] not [an] equitable mortgage[.]" Webb v. Harrington, supra, 504 S.W.2d at 263.
ose jurisdictions read by the court includes Lewis v. Miller, 226 Ark. 560, 291 S.W.2d 255 (1956); Hardy v. Neville, 261 N.C. 454, 135 S.E.2d 48 (1964); Neal v. Dover, 217 Ga. 545, 123 S.E.2d 760 (1962); Starns v. Adams, 484 S.W.2d 454 (Tex.Civ.App.1972); Kohler v. Gilbert, 216 Or. 483, 339 P.2d 1102 (1959); F. Gregorie & Son v. Hamlin, 257 S.E.2d 699 (S.C.1979); Swallow Ranches, Inc. v. Bidart, 525 F.2d 995 (9th Cir. 1975) applying Nevada law; Gibbons v. Gibbons, 103 Utah 266, 135 P.2d 105 (1943); Gagne v. Hoban, 280 Minn. 475, 159 N.W.2d 896 (1968); Greene v. Bride & Son Construction Company, 252 Iowa 220, 106 N.W.2d 603 (1960); Welsh v. Griffith Prideaux, Inc., 60 N.J.Super. 199, 158 A.2d 529 (1960); Boysun v. Boysun, 104 Mont. 85, 368 P.2d 439 (1962); Moorer v. Tensaw Land & Timber Co., 20 So.2d 105 (Ala.1944); In re Euclid Doan Co., 104 F.2d 712 (6th Cir. 1939) applying Ohio law; Parrish v. McDaniel, 358 S.W.2d 32 (Mo.1962); Foard v. Snider, 205 Md. 435, 109 A.2d 101 (1954); Kerfoot v. Kessener, 227 Ind. 58, 84 N.E.2d 190 (1949)). Apparently the Virgin Islands has no statute such as Florida's regarding the deeming of conveyances to be mortgages under such circumstances. Plaintiff has asserted that it must prevail under V.I.Code Ann. tit. 28, s 125 which provides:
Although Ms. Bradford and Ms. Varallo "were not obligated to repay the [D]efendants in an absolute sense," the court reasoned, they "were required to repay the Defendants if they wanted to retain ownership in the home." See Perry v. Queen, No. Civ. 3:05-0599, 2006 WL 481666, at *4 (M.D. Tenn. Feb. 27, 2006); see also In re Cox, 493 F.3d 1336, 1341 (11th Cir. 2007) (applying Georgia law) (reasoning that the lack of an "express creation of a recourse obligation . . . cannot be the determinative factor"); accord In re 716 Third Ave. Holding Corp., 340 F.2d 42, 46 (2d Cir. 1964) (applying New York law); Kerfoot v. Kessener, 84 N.E.2d 190, 200 (Ind. 1949); Ministers Life & Cas. Union v. Franklin Park Towers Corp., 239 N.W.2d 207, 210 (Minn. 1976); Parrish v. McDaniel, 358 S.W.2d 32, 36 (Mo. 1962); Rice v. Wood, 346 S.E.2d 205, 210 (N.C. Ct. App. 1986); Tuggle v. Berkeley, 43 S.E. 199, 201 (Va. 1903). It was enough that Ms. Bradford and Ms. Varallo "intended to repay the Defendants once the funds were available."
Snow v. Funck, supra. Where the grantor of a deed absolute on its face contends that the conveyance is an equitable mortgage, the fact that the grantee pays taxes levied against the property is indicative, but not conclusive, of a deed absolute. Parrish v. McDaniel, 358 S.W.2d 32 (Mo. 1962). By the same logic where the grantor of a deed absolute on its face contends that the conveyance is an equitable mortgage, the fact that the grantee obtains and pays for insurance on the property is indicative, but not conclusive, of a deed absolute.