Laws 1889, p. 118," that, in all cases where property may have been or may hereafter be conveyed to secure a debt, the surrender and cancellation of such deed, in the same manner that mortgages are now cancelled, on payment of such debt to any person legally authorized to receive the same, shall operate to reconvey the title to said property to the grantor, his heirs, executors, administrators or assigns." Pirkle v. Equitable Mortg. Co., 99 Ga. 524 (28 S. E. Rep. 34). See opinion for construction of this statute; and also Marshall v. Hodgkins, 99 Ga. 592 (27 S. E. Rep. 748); Pirkle v.Equitable Mortg. Co., 99 Ga. 524 (26 S. E. Rep. 34). Ga. Laws 1893, p. 117, construed and applied-absolute conveyance as a mortgagereconveyance and sale of property on execution. Burckholder v. Planters' Loan & Sav. Bank, 100 Ga. 428 (28 S. E. Rep. 236).

Sec. 586. Deeds construed as mortgages-Absolute deed creating a trust. Where a solvent person executed to another an absolute deed of property and at the same time there was a separate agreement between them in which it was stipulated that the grantee was to manage, control and dispose of the property as a trustee of the grantor for the payment of his debts, any balance remaining to be returned to him, his heirs, executors or assigns, it is held that the deed and agreement did not constitute a mortgage but passed the absolute title to the land. Ladd v. Johnson, 32 Or. 195 (49 Pac. Rep. 756). The court: "It is clear from the declaration of trust accompanying the conveyance that the transaction was intended by the parties as an unconditional conveyance to the plaintiff for the purpose of raising a fund to pay the grantors's debts then existing, between which and a mortgage or deed of trust in the nature of a mortgage there is a well-recognized distinction. In the one case the grantor parts absolutely with his title, and it vests in the grantee for the purposes of the trust. In the other the conveyance is conditional and subject to be defeated by performance on the part of the grantor. A mortgage or deed of trust in the nature of a mortgage is intended as security for the payment of money, or for the performance of some collateral act, and becomes void upon such payment or perform

ance, Wing v. Cooper, 37 Vt. 179; Mitchell v. Burnham, 44 Me. 299; Harrington v. City of Port Huron, 86 Mich. 46 (48 N. W. Rep. 641; 13 L. R. A. 664); Newman v. Samuels, 17 Ia. 528; while a deed of trust of the character under consideration here is an absolute and indefeasible conveyance of the whole of the grantor's title, for the purpose expressed. The former, whatever the form of the instrument, or whatever name may be given it by the parties, creates a mere lien, while the latter * title. conveys * The distinction between such an instrument and a mortgage or deed of trust designed as security for a debt is everywhere recognized, and is pointed out with clearness in the following authorities. 2 Pom. Eq. Jur., § 995; Kinney v. Heatley, 13 Or. 45 (7 Pac. Rep. 359); Flagg v. Walker, 5 Sup. Ct. Rep. 697; Hoffman v. Mackall, 5 O. St. 124 (64 Am. Dec. 637); Woodruff v. Robb, 19 Ohio 212; Turner v. Watkins, 31 Ark. 429; Soutter v. Miller, 15 Fla. 625; Title Guarantee & Trust Co. v. Northern Counties Investment Trust, 73 Fed. Rep. 931; Catlett v. Starr, 70 Tex. 485 (7 S. W. Rep. 844); Newman v. Samuels, 17 Ia. 528; McDonald v. Graham, 30 Kan. 170 (2 Pac. Rep. 507).”

Sec. 587. Action to declare deed a mortgage-Sufficiency of proof. Where a bill, to declare an absolute conveyance a mortgage, does not recognize or offer to perform all the contracts embraced in the transaction which as a whole con

stituted a mortgage, the bill should be dismissed. Jeffery v. Robbins, 167 Ill. 375 (47 N. E. Rep. 725). An absolute deed may be shown to be a mortgage by parol evidence. Shank v. Groff, 43 W. Va. 337 (27 S. E. Rep. 340); Book v. Beasley, 138 Mo. 455 (40 S. W. Rep. 101); Jones v. Cullen, 100 Tenn. 1 (42 S. W. Rep. 873). Either a grantee or grantor in an absolute deed may show it to be a mortgage, but the burden of proof is on the one who seeks to change its character. Kellogg v. Northup, 115 Mich. 327 (73 N. W. Rep. 230). The unsupported testimony of a grantor, when denied by the gran.. tee, is not sufficient to show an absolute deed to be a mortgage. Runyon's Adm'r v. Pogue, (42 S. W. Rep. 910). Where the evidence as to the conduct, declarations and pecuniary condition of the grantor confirm the presumption attach

Ky.

ing to an instrument in the form of an absolute deed, it should not be declared a mortgage. Peres v. Crocker, Cal. (47 Pac. Rep. 928). Particular cases in which the evidence is held sufficient so show an absolute deed to be a mortgage. Campbell v. Linder, 50 S. C. 169 (27 S. E. Rep. 618); Kramer v. Brown, 114 Ala. 612 (21 So. Rep. 817); Book v. Beasley, 138 Mo. 455 (40 S. W. Rep. 101); Meeker v. Shuster, Cal. (47 Pac. Rep. 580); Bowman v. Felts, Tenn. (42 S. W. Rep. 810); Jeffery v. Robbins, 167 III. 375 (47 N. E. Rep. 725). Particular evidence held insufficient to show an absolute deed to be a mortgage. Peres v. Crocker, Cal. (47 Pac. Rep. 928); Shultes v. Stivers, 66 Minn. 517 (69 N. W. Rep. 639).

Where a mortgagor, upon maturity of his obligation, conveys the property absolutely to his mortgagee, who releases the mortgage and executes an agreement to reconvey if the mortgagor shall pay a certain sum within a specified time, during which time it is provided that the mortgagor may remain in possession paying a fixed sum each month as interest, the transaction will not be construed a mortgage in the absence of clear, certain and conclusive proof that such was the intention of the parties. Sullivan v. Woods, Ariz.

(50 Pac. Rep. 113). The court say: "When there is a substantial conflict in the evidence, a mere preponderance of evidence is insufficient to prove that an absolute deed was a mortgage. It must be shown that it was executed, delivered and accepted and intended as a mortgage by clear and certain and conclusive evidence. Perot v. Cooper, 17 Colo. 80 (28 Pac. Rep. 391; 31 Am. St. Rep. 258). • When the written papers do not show that security was meant, it is incumbent upon the party seeking to establish a mortgage to show that a mortgage was intended.' Gassert v. Bogk, 7 Mont. 585 (19 Pac.

Rep. 281). For a deed absolute on its face, to be declared a mortgage, the testimony must establish a clear case.' Ganceart v. Henry, 98 Cal. 281 (33 Pac. Rep. 92); Henley v. Hotaling, 41 Cal. 22; Hanford v. Blessing, 80 Ill. 188. 'A deed absolute on its face given by A. to B. for real estate therein described, and a bond given by B. to A. agreeing to convey to A. a portion of the same property at a stipulated time, although given on the same date, and for the same

price, if not intended to be a mortgage, or security for money, by the parties themselves, and not appearing to be such on the face of the instruments, held to be an absolute bargain and sale, and not a mortgage.' Winters v. Swift, 2 Idaho

60 (3 Pac. Rep. 15). To justify a court of equity in holding a deed absolute on its face to have been intended by its parties as a mortgage simply, the proof should be clear and satisfactory.' Canal Co. v. Crawford, 11 Or. 243 (4 Pac. Rep. 113). One, who in the absence of fraud or false representations, has executed to a creditor a deed to certain property, and retained possession under a lease, the deed and lease providing that the premises should be reconveyed to the tenant upon his payment of the rent and the debt which these intsruments were given to secure, is estopped to deny such landlord's title in action brought to recover the rent.' Knowles v. Murphy, 107 Cal.107 (40 Pac. Rep. 111)."

Sec. 588. Priority of mortgage. A mortgagee having a lien prior to the lien of general creditors, loses his priority, where, after their lien has attached to the mortgagor's equity of redemption, he executes an absolute release of his mortgage in order to enable the mortgagor to sell the premises and subsequently takes in payment of his debt, in pursuance of an agreement with the mortgagor at the time the mortgage was satisfied, an assignment of purchase money notes given by the mortgagor's purchaser, which are secured by a vendor's lien. Bridges v. Cooper, 98 Tenn. 381 (39 S. W. Rep. 720). The lien of a mortgagor's widow for a year's support, given by the statute of Georgia, attaches only to his equity of redemption, and in case of sale of the premises the mortgage debt is to be first paid. Burckhalter v. Planters' Loan & Sav. Bank, 100 Ga. 428 (28 S. E. Rep. 236). A mortgage to secure an antecedent debt which is filed before an actual entry of a judgment which was filed soon after on the same afternoon, will not have priority over the judgment but their liens will be equal. Goetzinger v. Rosenfeld, 16 Wash. 392 (47 Pac. Rep. 882; 38 L. R. A. 257). A mortgagee of a vendee of lands, the legal title to which is held by his vendor subject to the performance of certain conditions, takes subject to such conditions. Allemania Loan & Bldg. Co. No. 2 v. Frantzreb, 56 O. St.

493 (47 N. E. Rep. 497).

When an agreement has been made that a mortgage shall be subject and subordinate to a subsequent lease of the same lands, provided and so long as certain payments mentioned in the agreement are made on the mortgage, a failure to make snch payments will ipso facto restore the priority of the mortgage. Cummings v. Jackson, 55 N. J. Eq. 805 (38 Atl. Rep. 763). A court of equity will grant relief against a priority acquired by fraud, of which the agent of the mortgagee claiming priority had notice. Ennesser v. Hudek, 169 Ill. 494 (48 N. E. Rep. 673). One holding under a mortgage which recognizes that it is subject to a prior mortgage, cannot gain priority over such other mortgage by assailing it upon the ground that it is fraudulent as to the mortgagor's creditors; but he may relinquish his right to claim under his mortgage and assail such other mortgage as a creditor. Old National Bank v. Heckman, 148 Ind. 490 (47 N. E. Rep. 953). Where property subject to two mortgages is conveyed by the mortgagor to the holder of the first mortgage, the junior mortgage is superior to a subsequent mortgage given by such grantee. Hitchcock v. Nixon, 16 Wash. 281 (47 Pac. Rep. 412). A subsequent incumbrancer is not entitled to priority over a prior indemnity mortgage because its recitals do not show its real character, but on its face it is conditioned absolutely to pay the note referred to. Steen v. Stretch, 50 Neb. 572 (70 N. W. Rep. 48). Where buildings, subject to the lien of a mortgage upon the land on which they are situated, are removed by a subsequent purchaser and mortgaged to an innocent third party, the lien of the original mortgage has priority to the extent the land is not sufficient to satisfy the debt it secures. Johnson v. Bratton, 112 Mich. 319 (70 N. W. Rep. 1021).

Sec. 589. Priority of purchase money mortgage. A purchase money mortgage given at the time property is acquired has priority over a previous mortgage by the purchaser which was to cover after-acquired property. Daly v. New York & G. L. Ry. Co., 55 N. J. Eq. 595 (38 Atl. Rep. 202). One who takes a mortgage from a vendee, before his title deed is recorded, takes subject to a prior unrecorded purchase money mortgage given at the time of the purchase and