To show by oral evidence, however, that a conveyance absolute in form was intended to be a mortgage, the evidence must be clear and convincing, the presumption being that the instrument is what it purports to be.58 In the case, moreover, of an oral defeasance, as in the case of a separate written defeasance, a purchaser for value from the mortgagee is not affected thereby unless he has notice of its existence."

59

The admission of evidence for the purpose of showing an absolute conveyance to be a mortgage is evidently an exception to the rule which excludes extrinsic evidence to vary or control a written instrument, and there has been considerable discussion as to the principle on which the exception to the general rule can be allowed. In some cases the right to introduce such evidence is stated to exist only when the written defeasance has been omitted as the result of fraud, accident, or mistake, while in others the attempt to utilize the absolute conveyance otherwise than as a mortgage, contrary to the intention of the parties, is regarded as itself constituting a fraud, authorizing the introduction of oral evidence of the

58 Coyle v. Davis, 116 U. S. 108; Corbit v. Smith, 7 Iowa, 60, 71 Am. Dec. 431; Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644; Winston v. Burnell, 44 Kan. 367, 21 Am. St. Rep. 289; Waters v. Crabtree, 105 N. C. 394; Mahoney v. Bostwick, 96 Cal. 53, 31 Am. St. Rep. 175; Perot v. Cooper, 17 Colo. 80, 31 Am. St. Rep. 258; Keithley v. Wood, 151 Ill. 566, 42 Am. St. Rep. 265; Wallace v. Smith, 155 Pa. St. 78, 35 Am. St. Rep. 868.

59 Jackson v. Lawrence, 117 U. S. 679; Conner v. Chase, 15 Vt. 775; Brophy Min. Co. v. Brophy & Dale Gold & Silver Min. Co., 15 Nev. 110; Frink v. Adams, 36 N. J. Eq. 485; Meehan v. Forrester, 52 N. Y. 277; Pancake v. Cauffman, 114 Pa. St. 113; Waters v. Crabtree, 105 N. C. 394. See Knapp v. Bailey, 79 Me. 195, 1 Am. St. Rep. 295. 60 4 Kent's Comm. 142; Blakemore v. Byrnside, 7 Ark. 505; Washburn v. Merrills, 1 Day (Conn.) 139; Crutcher v. Muir, 90 Ky. 142, 29 Am. St. Rep. 366; Lokerson v. Stillwell, 13 N. J. Eq. 358; Sprague v. Bond, 115 N. C. 530; McClane v. White, 5 Minn. 178 (Gil. 139). In Georgia, the statute excludes parol evidence, except to show fraud in procuring the mortgage. Hall v. Waller, 66 Ga, 483.

real intention of the parties. The courts, however, more usually, at the present day, give relief by treating an absolute conveyance as a mortgage, on oral evidence to that effect, without undertaking to base it upon any theory of fraud, accident, or mistake, but rather as an independent head of equity,°2 and it would seem that the recognition of a right to such relief is an almost necessary result of the equitable doctrine that any agreement or device by which it is sought to defeat the mortgagor's right of redemption is invalid.

62

Sale with right of repurchase.

The fact that an absolute conveyance is accompanied by an agreement, or is subject to a condition, that the grantor may repurchase within a given time, at the same or a different price, is not conclusive that the transaction is a mortgage. Such a transaction is perfectly valid if it is what it appears to be, and the right to repurchase is lost if not exercised within the stipulated time. A difficult question, however, frequently arises, as to whether a transaction in form a conditional sale is not in fact a mortgage, as being intended to secure the payment of money, and a court of equity will closely scrutinize the transaction to see if such is the case, and will,

1 Babcock v. Wyman, 19 How. (U. S.) 289; Hershey v. Luce, 56 Ark. 320; Pierce v. Robinson, 13 Cal. 116; O'Neill v. Capelle, 62 Mo. 202; Wallace v. Smith, 155 Pa. St. 78, 35 Am. St. Rep. 868; Wright v. Bates, 13 Vt. 341. See Ruckman v. Alwood, 71 Ill. 155; Hassam v. Barrett, 115 Mass. 256; 3 Pomeroy, Eq. Jur. § 1196.

62 See Ruckman v. Alwood, 71 Ill. 155, quoted in Kirchwey's Cas. 200.

63 4 Kent's Comm. 144; Pomeroy, Eq. Jur. § 1195; Thornborough v. Baker, 3 Swanst. 631, Kirchwey's Cas. 147; Barrell v. Sabine, 1 Vern, 268; Conway's Executors & Devisees v. Alexander, 7 Cranch (U. S.) 218, Kirchwey's Cas. 151; Horbach v. Hill, 112 U. S. 144; Macaulay v. Porter, 71 N. Y. 173; Moss v. Green, 10 Leigh (Va.) 251, 34 Am. Dec. 731; Rue v. Dole, 107 Ill. 275; Flagg v. Mann, 14 Pick (Mass.) 467, 478; Ruffer v. Womack, 30 Tex. 332.

if it appears to be such, give the grantor the right to redeem, with any other rights which belong to a mortgagor. In case of doubt, the courts incline to consider the transaction a mortgage, thus applying a different rule from that applied to an absolute conveyance not accompanied by an agreement for repurchase.

Considerations determining character of conveyance.

In determining the question whether an absolute conveyance is a mortgage,-whether there is or is not an agreement giving the right of repurchase,—the fact that an indebtedness on the part of the grantor to the grantee is created by the transaction, or that a former indebtedness is thereby continued in force, is usually conclusive that it is a mortgage. The absence of a covenant or other express agreement to repay the money is not, however, conclusive that the conveyance is not a mortgage. Among the other circumstances tending

68

65

04 Conway's Executors & Devisees v. Alexander, 7 Cranch (U. S.) 218, Kirchwey's Cas. 151; Russell v. Southard, 12 How. (U. S.) 139, Kirchwey's Cas. 157; Cosby v. Buchanan, 81 Ala. 574; Farmer v. Grose, 42 Cal. 169; Matthews v. Sheehan, 69 N. Y. 585; Trucks v. Lindsey, 18 Iowa, 504; Poindexter v. McCannon, 16 N. C. 373, 18 Am. Dec. 591; Edrington v. Harper, 3 J. J. Marsh. (Ky.) 354, 20 Am. Dec. 145; Keithley v. Wood, 151 Ill. 566, 42 Am. St. Rep. 265; O'Neill v. Capelle, 62 Mo. 202.

65 4 Kent's Ccmm. 144; 3 Pomeroy, Eq. Jur. § 1195; Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4,847, Kirchwey's Cas. 167; Conway's Executors & Devisees v. Alexander, 7 Cranch (U. S.) 237, Kirchwey's Cas. 151; Slowey v. McMurray, 27 Mo. 113, 72 Am. Dec. 251; Keithley v. Wood, 151 Ill. 566, 42 Am. St. Rep. 265; Montgomery v. Spect, 55 Cal. 352; Wallace v. Smith, 155 Pa. St. 78, 35 Am. St. Rep. 868; Hopper v. Smyser, 90 Md. 363; Fisher v. Green, 142 Ill. 80.

66 Matthews v. Sheehan, 69 N. Y. 585, Kirchwey's Cas. 164; Floyer v. Lavington, 1 P. Wms. 268; Russell v. Southard, 12 How. (U. S.) 139, Kirchwey's Cas. 157; Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4,847, Kirchwey's Cas. 167; Brown v. Dewe, 1 Sandf. Ch. (N. Y.) 57; Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671, Kirchwey's Cas. 191; Horn v. Keteltas, 46 N. Y. 605, Finch's Cas. 1106.

to show that the transaction is a mortgage, and not an absolute conveyance, are the inadequacy of the sum paid by the gran tee to the grantor as a consideration for the land, and the fact that the grantor remained in possession. 67

513. The obligation secured.

A mortgage is usually given to secure the payment of a sum of money, and the debt is usually evidenced by a note, bond, or other instrument, separate from the mortgage, though this is not necessary.88

Except as against creditors who may be defrauded thereby, a mortgage securing in terms the payment of a sum of money is valid, although the mortgagor received no part of such sum, or any other consideration for the making of the mortgage, the owner of land having the same right to make a present of a mortgage on the land as to give the land itself.69 So the mortgage may be given to secure the payment of a debt which existed before the making of the mortgage; but in such a

7 Conway's Executors & Devisees v. Alexander, 7 Cranch (U. S.) 218, Kirchwey's Cas. 151; Russell v. Southard, 12 How. (U. S.) 139, Kirchwey's Cas. 157; Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4,847, Kirchwey's Cas. 167; Bacon v. Brown, 19 Conn. 34; Hoffman v. Ryan, 21 W. Va. 417; Williams v. Reggan, 111 Ala. 621; Co. Litt. 205a, Butler's note.

68 Conway's Executors & Devisees v. Alexander, 7 Cranch (U. S.) 218; Hickox v. Lowe, 10 Cal. 197; Jacques v. Weeks, 7 Watts (Pa.) 268; Smith v. People's Bank, 24 Me. 185; Hodgdon v. Shannon, 44 N. H. 572; Eacho v. Cosby, 26 Grat. (Va.) 112; Rice v. Rice, 4 Pick. (Mass.) 349.

• Bucklin v. Bucklin, 1 Abb. Dec. (N. Y.) 242, Kirchwey's Cas. 203; Campbell v. Tompkins, 32 N. J. Eq. 170; Brooks v. Dalrymple, 12 Allen (Mass.) 102; Brigham v. Brown, 44 Mich. 59.

70 Morse v. Godfrey, 3 Story, 364, Fed. Cas. No. 9,856; Gafford v. Stearns, 51 Ala. 434; Rea v. Wilson, 112 Iowa, 517; De Lancey v. Stearns, 66 N. Y. 157; Chaffee v. Atlas Lumber Co., 43 Neb. 224, 47 Am. St. Rep. 753; Mingus v. Condit, 23 N. J. Eq. 313; 1 Jones, Mortgages, § 460.

case the mortgagee is not usually regarded as a purchaser for value, unless some additional consideration is given, and consequently is not protected as against a prior conveyance of which he had no notice.71

Description of obligation.

A mortgage given to secure a debt existent at the making of the mortgage, or contemporaneous therewith, is valid, even as against subsequent purchasers and creditors, although it does not explicitly state the amount of such debt or liability, provided there are means of ascertaining such amount.72 And extrinsic evidence is admissible for the purpose of showing the debt which the mortgage was intended to secure.73 The statement in the mortgage as to the sum secured is not conclusive in that regard, and it may be shown by the mortgagor that the lien was for a less sum,' or even that the mort

74

71 Morse v. Godfrey, 3 Story, 364, Fed. Cas. No. 9,856; Gafford v. Stearns, 51 Ala. 434; Mingus v. Condit, 23 N. J. Eq. 313; De Lancey ▼. Stearns, 66 N. Y. 157; Lewis v. Anderson, 20 Ohio St. 281; Schumpert v. Dillard, 55 Miss. 348; Gilchrist v. Gough, 63 Ind. 576, 30 Am. Rep. 250.

72 Stoughton v. Pasco, 5 Conn. 442, 13 Am. Dec. 72, Kirchwey's Cas. 268; Robinson v. Williams, 22 N. Y. 380, Kirchwey's Cas. 274; Youngs ▼. Wilson, 27 N. Y. 351, Kirchwey's Cas. 280; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315; New v. Sailors, 114 Ind. 407, 5 Am. St. Rep. 632; Bowen v. Ratcliff, 140 Ind. 393, 49 Am. St. Rep. 203; Bullock v. Battenhousen, 108 Ill. 28; Clark v. Hyman, 55 Iowa, 14, 39 Am. Rep. 160; Shirras v. Caig, 7 Cranch (U. S.) 34; Hurd v. Robinson, 11 Ohio St. 232.

78 Doe d. Duval's Heirs v. McLoskey, 1 Ala. 708; Aull v. Lee, 61 Mo. 160; Babcock v. Lisk, 57 Ill. 327; Moses v. Hatfield, 27 S. C. 324; Williams v. Hilton, 35 Me. 547, 58 Am. Dec. 729; Hurd v. Robinson, 11 Ohio St. 232; Wilson v. Russell, 13 Md. 494, 71 Am. Dec. 645; Boody v. Davis 20 N. H. 140, 51 Am. Dec. 210; Baxter v. McIntire, 13 Gray (Mass.) 168. In some jurisdictions, however, the statute requires a specific description of the debt. See Mans v. McKellip, 38 Md. 231; Page v. Ordway, 40 N. H. 253.

74 Mackey v. Brownfield, 13 Serg. & R. (Pa.) 239; Nazro v. Ware,