It is of frequent occurrence, that a difficulty arises in determining in a given case, where the possession of the goods are delivered by one, to another, where an indebtedness exists on the part of the person delivering the goods, in favor of the person who receives the goods, whether the delivery of the goods is in consideration of the cancellation of the debt, in whole, or in part, or whether the goods are delivered as a security, to the creditor for the existing indebtedness. If the debt is satisfied it is a sale, if the debt is not satisfied it is a mortgage or pledge.11 The retention of the evidence of indebtedness, such as a bond, or note by the creditor, would raise the presumption that the indebtedness remained unsatisfied, and that a pledge was therefore intended. If the conveyance extinguishes the debt, a subsequent or contemporaneous stipulation in the interest of the debtor, securing to him the right to repurchase ought not to be construed to the creditor's prejudice. Such a transaction is not to be construed a mortgage, it is a conditional sale.12 "It is a necessary ingredient of a mortgage," said C. J. Marshall, "that the mortgagee should have a remedy against the person of his debtor. If this remedy really exists, its not being reserved in terms, will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument." 13 Where a sale is made which carries with it the right of repurchase in the vendor, unless the vendee could also compel repayment, it will not be held to be a loan on the security of the goods so transferred, it is an absolute conveyance.14 It remains with the court, in any case, to say what the contract means, where the contract is in writing and the facts are not in dispute, this raises a question of law. Where the parties are not agreed on the facts, the question is then one for the jury.15 A sale is so much like a chattel mortgage that a word on chattel mortgages is of value.

7 Lonergan vs. Stewart, 55 I11., 44.

8 Colton vs. Wise, 7 I11. App., 395.

9 Hunt vs. Wyman, 100 Mass , 198.

10 Irons vs. Kentner, 51 Iowa, 88.

11 Smith vs. Beattie, 31 N. Y., 542; Stuphen vs. Cushman, 35 111. 186.

12 Turner vs. Kerr, 44 Mo., 429.

13 Conway vs. Alexander, 7 Cranch, 218.

14 Glover vs. Payne, 19 Wendell, 518.

15 Crosby vs. Delaware & Hudson Canal Co., 119 N. Y., 334.

A chattel mortgage as defined, is a conveyance of personal property to secure the debt of the mortgagor, which being conditional at the time, if the condition be not duly performed, the whole title vests absolutely at law in the mortgage.16 A chattel mortgage was unknown to the Common law.17 The usual form of the chattel mortgage is a bill of sale with a defeasance clause, but any form of words indicating that the intention of the parties is that the property is conveyed for a security is in proper form.18 As far as third parties are concerned if they have notice that the instrument purporting to be a bill of sale is a mortgage, it will be treated as such,19 but as to innocent third persons who have been deceived by the form of the instrument, it will be held to be what it purports to be, and will be enforced as such where their rights are involved.20 Parol evidence is admissible to show that what purports to be a bill of sale is a mortgage.21