Mortgage by conditional sale turns on real intention; statutory redemption right cannot be waived at inception.

A transaction described in registered documents, read with the surrounding circumstances, was treated as a mortgage by conditional sale because the parties were identified as mortgagor and mortgagee, redemption within seven years was stipulated, the mortgagor had to bear taxes and repairs, and foreclosure was provided for. The court held that the real intention of the parties is the decisive test in distinguishing such a mortgage from an outright sale, and that the statutory right of redemption under property law cannot be extinguished by a term inserted at the inception of the mortgage. On that basis, redemption remained available and the decree for redemption with possession was maintained.

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Issues: Whether the disputed transaction was a mortgage by conditional sale or an outright sale, and whether the mortgagor's right of redemption had been extinguished.

Analysis: The registered documents, the applications made for permission under the urban land law, and the subsequent registered deed were read together to ascertain the real intention of the parties. The description of the parties as mortgagor and mortgagee, the stipulation for redemption within seven years, the obligation of the mortgagor to bear taxes and repairs, and the provision for foreclosure all supported the conclusion that the transaction was a mortgage by conditional sale. The registered instrument was the operative mortgage document, and the redemption period was counted from its execution. The right of redemption under the transfer of property law is a statutory right and cannot be extinguished by the original arrangement at the time of mortgage. The limitation period for redemption had not expired, and the concurrent findings of the courts below were supported by the evidence.

Conclusion: The transaction was a mortgage by conditional sale and not an outright sale, and the right to redeem subsisted. The findings against the defendant appellant were upheld.

Final Conclusion: The second appeal failed and the decree for redemption with possession was maintained, with costs.

Ratio Decidendi: In determining whether a transaction is a mortgage by conditional sale or a sale with a condition of repurchase, the decisive test is the real intention of the parties as gathered from the registered documents and surrounding circumstances, and the statutory right of redemption cannot be defeated by contractual stipulation at inception.

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