This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
(2) A contract for the reconveyance of realty conveyed by an instrument which is in form a deed, but in reality a mortgage, on payment of the debt to secure which the instrument is given is not within the statute, since under such circumstances the duty to reconvey exists independent of contract.1 If, on the other hand, the conveyance is a deed in reality as well as in form, a contract to reconvey on the happening of some further event is within the statute.2 So a contract for redemption of realty conveyed by a deed, which is in law and equity a deed as distinguished from a mortgage, is within the statute.3
If the instrument is a mortgage on its face, it is impossible for any question to arise as to creating the right of redemption by oral contract. The question does often arise, however, as to the possibility of extending the period of redemption by oral contract. Since in most jurisdictions a mortgage is treated for most purposes as a lien to secure a debt and not as a convey-
1 White v. Downs, 40 Tex. 225; Halvorsen v. Halvorsen, - Wis. -; 97 N. W. 494.
1 Hodges v. Vomer, 100 Ala. 612; 13 So. 679; Olds v. Marshall, 93 Ala. 138; 8 So. 284; Spies v. Price, 91 Ala. 166; 8 So. 405; Peagler v. Stabler, 91 Ala. 308; 9 So. 157; Bates v. Kelly, SO Ala. 142: Mitchell v. Wellman. 80 Ala. 16; Morrow v. Jones, 41 Neb. 867; 60 N. W. 369;
Mussey v. Bates, 65 Vt. 449; sub nomine, Mussey v. Yates, 21 L. R. A. 516; 27 Atl. 167.
2 Brock v. Brock, 90 Ala. 86; 9 L. R. A. 287: 8 So. 11.
3 Goree v. Clements, 94 Ala. 337; 10 So. 906; Gibbs v. Ins. Co., 123 111. 136; 13 N. E. 842. (In this last ease, furthermore, the party seeking to enforce the contract had not performed his part.) ance of an estate in realty a contract extending the period of redemption is not within the statute of frauds.4