Western Underwriting & Mortgage Co. v. Valley Bank

(after stating the facts as above). [1] It is contended by the appellant that the court below, in dismissing the action, necessarily based its judgment upon the agreement of January 27, 1912, as modified by the parol agreement set up in the defendant’s answer, as an affirmative defense. Assuming that this is so, we do not think the objection is a ground for reversing the judgment. In Jones on Evidence, ,§ 446, the author says:

In Peugh v. Davis, 96 U. S. 332, 336 ( 24 L. Ed. 775 ), the Supreme Court had before it a deed absolute in form, but claimed to have been executed as security for a loan of money, and the question was whether evidence, written or oral, was admissible to show the real character of the transaction. The court said:

In Brick v. Brick, 98 U. S. 514, 516 , 25 L. Ed. 256 , the rule declared in Peugh v. Davis was followed with respect to a pledge of a certificate of stock as security for a loan of money; and in Cabrera v. American Colonial Bank, 214 U. S. 224, 230 , 29 Sup. Ct. 623, 626 ( 53 L. Ed. 974 ), in which it was claimed that a bill of sale was an absolute conveyance and accomplished tire payment of certain debts to a bank, the court said:

[2] But aside…