90. First Nat. Bank of Florida v. Ashmead, 23 Fla. 379, 2 So. 657. 665; Cotten v. McKee, 68 Me. 486; Reitenbaugh v. Ludwick, 31 Pa. St 131; and see cases cited in preceding note.

91. Baker v. Wind, 1 Ves. Sr. 160; Lund v. Lund, 1 N. H. 39, 8 Am. Dec. 29; Kelleran v. Brown, 4 Mass. 443; Flag v. Mann, 14 Pick. (Mass.) 467; Warren v. Lovis, 53 Me. 463.

In equity, however, no such strictness as to the execution of the instrument of defeasance exists, and any agreement, however informally expressed or executed, showing an intention that a conveyance absolute in form shall operate merely as a security for the repayment of money, is sufficient to make the transaction a mortgage.92

The defeasance should be recorded with the absolute conveyance. In some states it is provided by statute that, if the defeasance is not recorded, the grantee shall take nothing under the conveyance, Or shall derive no benefit from the record of the conveyance,93 while in others it is provided that, in such case, the conveyance shall pass an absolute title, except as against the maker of the instrument, his heirs and devisees, and, usually, persons having actual notice of the instrument of defeasance.94 In the first class of states, therefore, it is to the advantage of the mortgagee to see that the defeasance is recorded, while in the latter class, the mortgagor or those claiming under him can alone suffer from the absence of the defeasance from the record. In the absence of a statute on the subject, the failure to record the defeasance will not ordinarily prejudice the mortgagee, since the record of the conveyance to him is sufficient to charge third persons with notice that he has rights in the

92. 4 Kent's Comm. 142; Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. Ed. 142 Eaton v. Green, 22 Pick. (Mass.) 526; James v. Carey, 2 Cow. (N. Y.) 246; Brinkman v. Jones, 44 Wis. 498; Den d. Skinner v. Cox, 15 N. C. 59; Lewis Small, 71 Me. 552. See Kyle v. Hamilton, 136 Cal. XIX, 68 Pac. 484.

93. Stimson's Am. Stat. Law Sec. 1860. See Harrison v. Morton,

87 Md. 671, 40 Atl. 879; Clark v. Condit, 18 N. J. Eq. 358; Brown v. Dean, 3 Wend. (N. Y.) 208.

94. 1 Stimson's Am. Stat. Law. Sec. 1860. See Carpenter v. Lewis, 119 Cal. 18, 50 Pac. 925; Smith v. Monmouth Fire Co., 50 Me. 96; Columbia Bank v. Jacobs, 10 Mich. 349, 81 Am. Dec. 792. In Pennsylvania, under the statute, an unrecorded defeasance cannot be conland, and they cannot complain that his actual interest in the land is less than that which he appears from the record to have.95

(b) Oral evidence that mortgage intended.

It has been decided, in most jurisdictions, that oral evidence is admissible in a court of equity to show that a conveyance absolute in form, unaccompanied by a written defeasance, was intended as security merely, and the conveyance, if shown to be so intended, will be regarded as a mortgage with a right of redemption in the grantor.96 sidered for any .purpose, Loh-rer v. Russell, 207 Pa. 105, 56 Atl. 333.

95. Turman v. Bell, 54 Ark. 273, 26 Am. St. Rep. 35, 15 S. W. 886; Equitable Building & Loan Ass'n v. King, 48 Fla. 252, 37 So. 181; Christie v. Hale, 46 111. 117; Koons v. Grooves, 20 Iowa, 373; Knight v. Dyer, 57 Me. 174, 99 Am. Dec. 765; Mar-ston v. Williams, 45 Minn. 116, 22 Am. St. Rep. 719. 47 N. W. 644; Bank of Mobile v. Tishomingo Sav. Inst.. 62 Miss. 256; Frink v. Adams, 36 N. J. Eq. 485; Security Savings & Trust Co. v. Loewenberg, 38 Ore. 159, 62 Pac. 647. But in Ives v. Stone, 51 Conn. 446; Freed-man v. Avery, 89 Conn. 439, 94 Atl. 969, the record of the conveyance alone was regarded as insufficient to protect the grantee as against attaching creditors, on the ground that the real nature of the transaction should appear of record. And see Gulley v. Macy, 84 N. C. 434; Friedley v. Hamilton, 17 Serg. & R. (Pa.) 70, 17 Am.

Dec. 638, to the effect that the record of an absolute conveyance intended as security is nugatory as against creditors.

96. Morton v. Allen, 180 Ala. 279, L. R. A. 1916B, 11, 60 So. 866; Scott v. Henry, 13 Ark. 112; Ahern v. McCarthy, 107 Cal. 382, 40 Pac. 482; Brown v. Follette, 155 Ind. 316, 58 N. E 197; Winston v. Burnell, 44 Kan. 367, 21 Am. St. Rep. 280. 24 Pac. 477; Leibel v. Tandy, 146 Ky. 101, 141 S. W. 183; Knapp v. Bailey, 79 Me. 195, 1 Am. St. Rep. 295, 9 Atl. 122; Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671; State Bank of O'Neill v. Mathews, 45 Neb. 659, 50 Am. St. Rep. 565, 63 N. W. 930; Cobb v. Day, 106 Mo. 278, 17 S. W. 323; Horn v. Keteltas, 36 N. Y. 605; Plumer v. Guthrie, 76 Pa. St. 441; Hannay v. Thompson, 14 Tex. 142; Hills v. Loomis, 42 Vt. 562; McNeel's Ex'rs v. Auldridge, 34 W. Va. 748, 12 S. E. 851; Ross T. Howard, 31 Wash. 393, 72 Pae. 74.

In a number of jurisdictions it has been decided that oral evidence to show that a conveyance was intended as security is admissible in equity only,97 while in others such evidence has been decided to be admissible at law as well as in equity.98 This difference of view is to a great extent the result of the different views adopted in reference to a mortgage in ordinary form. In those states in which a conveyance with a clause of defeasance is, though intended for purposes of security only, regarded as vesting the legal title in the grantee, that is, the mortgagee, a conveyance omitting the clause of defeasance must necessarily have the same effect, and a court of law being concerned only with the legal title, and having usually no occasion to consider whether one to whom the legal title has been transferred holds it as mortgagee or otherwise, evidence that he so holds it is irrelevant to any issue before such court.

Whether, in a jurisdiction in which the lien theory of a mortgage is adopted, an absolute conveyance can, in a court of law as well as of equity, be shown to have been intended as a mortgage, has been the subject of lengthy discussion in several cases, the opinions usually favoring the admissibility of evidence for this purpose. So far as equitable defenses are made admissible at law in the particular jurisdiction, evidence to show the purpose of the conveyance might be admissible as constituting such a defense.99 Whether it is otherwise admissible at law, by reason of the fact that the lien theory of a mortgage is adopted in the particular state, would seem to depend on whether this theory applies to a mortgage in the form of an absolute conveyance without any defeasance, as well as to a mortgage in the ordinary form. If a conveyance absolute in form, when intended as security only, creates, even in the view of a court of law, a lien only, and does not vest the legal title in the grantee, it would seem proper, and even necessary, in such a court, in order to show where the legal title lies, to introduce evidence that the conveyance was intended as security only. To this question, whether an absolute conveyance, intended as a mortgage, passes the legal title in a jurisdiction in which a mortgage instrument in ordinary form does not have that effect, the cases give no uniform answer. There are in several states decisions to the effect that, though a mortgage in ordinary form creates a lien merely, a conveyance intended as security transfers the legal title,1 while in others it has been decided that such a conveyance has no more effect as transferring