The transfer of the mortgagor's interest to the mortgagee must ordinarily, it seems clear, comply with the Statute of Frauds.8 In the case of an absolute conveyance intended for purposes of security, however, a different view has occasionally been taken. In such a case a mere oral agreement by which the grantor (mortgagor) relinquishes the right of redemption has been held to vest an absolute title in the grantee.9 And so in the case of a separate written defeasance, the cancellation or surrender thereof has been given the same effect.10 These decisions are usually based on the

Rep. 61, 45 So. 241; Equitable Building & Loan Ass'n v. Thomas, 216 Pa. 571, 65 Atl. 1100.

6. Rothschild v. Bay City Lumber Co., 139 Ala. 571, 36 So. 785; Archer v. Salinas City, 93 Cal. 43, 16 L. R. A. 45, 28 Pac. 839; Mac Intyre v. Ferst, 101 Ga. 682, 28 S. E. 989; Triplett v. Parmlee, 16 Neb. 649, 21 N. W. 403; Scott v. Lewis, 40 Ore. 37, 66 Pac. 299.

7. Powell v. Jeffries, 5 111. 387; Davis v. Rogers, 28 Iowa, 413; Crow v. Tinsley, 6 Dana (Ky.) 402; Thompson v. Chandler, 7 Me. 377; Wilson v. Vanstone, 112 Mo. 315, 20 S. W. 612; Blake v. Williams, 36 N. H. 39; Navassa Guano Co. v. Richardson, 26 S. C. 401, 2 S. E. 307.

8. McMillan v. Jewett, 85 Ala. 476, 5 So. 145; Scott v. McFarland, 13 Mass. 309; Marble v. Marble, 5 N. H. 374; VanKeuren v. McLaughlin, 19 N. J. Eq. 187; Odell v. Montross, 68 N. Y. 499.

9. McMillan v. Jewett, 85 Ala. 476, 5 So. 145; Bazemore v. Mul-lins, 52 Ark. 207, 12 S. W. 474; Seymour v. Mackay, 126 111. 341, 18 N. E. 552; Hutchison v. Page, 246 111. 71, 92 N. E. 571; Ferguson v. Boyd, 169 Ind. 537, 81 N. E. 71, 82 N. E. 1064; Scholl v. Hopper, 134 Ky. 83, 119 S. W. 770; Baxter v. Pritchard, 122 Iowa, 590, 101 Am. St. Rep. 282, 98 N. W. 372; Sears v. Gilman, 199 Mass. 384, 85 N. E. 466; Stall v. Jones, 47 Neb. 706, 66 N. W. 653; Minick v. Reichenbach, 97 Neb. 629, 150 N. W. 1001; Miller v. Smith, 20 N. D. 96, 126 N. W. 499; Shaw v. Walbridge, 33 Ohio St. 1. See Editorial note, 24 Harv. Law Rev. 244.

10. West v. Reed, 55 111. 242; Wilson v. Carpenter, 62 Ind. 495; Greenlaw v. Eastport Sav. Bank, 106 Me. 205, 76 Atl. 485; Trull v.

» theory that by such action the grantor (mortgagor) renders it inequitable for him to assert the right of redemption, estops himself so to do, it is sometimes said. It might be suggested, however, that conceding the original invalidity of the transaction as not complying with the Statute of Frauds, there is ordinarily nothing inequitable in asserting such invalidity, especially when the other party has not changed his position on the strength thereof. The doctrine of the above cases, that a conveyance intended to operate as a mortgage may be changed, by a subsequent oral agreement, into an absolute conveyance, vesting an absolute title in the grantee, has been denied in two or three states, on the ground that such a conveyance, though purporting to transfer the legal title, merely creates a lien.11 The propriety of such a conclusion, that an instrument which was not originally effective to convey the legal title could not be given such effect by a subsequent oral agreement, appears to be incontestable.12 Even in states in which a conveyance absolute in terms given as security does convey the legal title,13 the view that it may be made absolute in fact by an oral agreement to that effect is not entirely satisfactory. The mortgagor is, even in those states, the substantial owner of the property, and it is difficult to see how a transaction by which he vests that ownership in another can be regarded otherwise than as a conveyance. He has, in those states, the same character of interest as has one who makes a mortgage in ordinary form in states in which the title theory of a mortgage is recognized, and he should not be allowed to divest himself of such interest by an oral agreement in the one case and not in the other.

Skinner, 17 Pick. (Mass.) 213; Sears v. Gilman, 199 Mass. 384, 85 N. E. 466; Seawell v. Hendricks, 4 Okla. 435, 46 Pac. 557; Raski v. Wise, 56 Ore. 72, 107 Pac. 984. See Editorial note, 22 Harv. Law Rev. 295.

11. VanKeuren v. McLaughlin, 19 N. J. Eq. 187; Conover v. Palmer, 60 N. Y. Misc. 241, 111 N. Y. Supp. 1074; Ullman v. Devereux,

46 Tex. Civ. App. 459, 102 S. W. 1163; Keller v. Kirby, 34 Tex. Civ. App. 404, 79 S. W. 82. See Howe v. Carpenter, 49 Wis. 697, 6 N. W. 357; Odell v. Montross, 68 N. Y. 499; Williams v. Purcell, 54 Okla. 489, 145 Pac. 1151.

12. See Editorial note, 22 Harv. Law Rev. 295.

13. Ante, Sec. 605 (b), note.

Quite frequently what is in form an absolute conveyance of the mortgagor's interest to the mortgagee has been regarded by the court as in effect a mortgage, intended to supplement or take the place of the original mortgage.14 The question whether the conveyance is to be so regarded is ordinarily determined with reference to the same class of considerations as apply in the case of any absolute conveyance asserted to be intended for purposes of security only.15 The conveyance to the mortgagee is not necessarily a mortgage because there is a provision entitling the original mortgagor to a reconveyance upon the payment by him to the mortgagee of the amount of the debt originally secured, or some other amount. It may be an absolute conveyance with a right of repurchase in the grantor, a "conditional sale."16 A conveyance to the mortgagee, however, with a provision that he is to sell the property and, after paying the mortgage debt, account for the surplus to the mortgagor, has occasionally been construed as a mortgage and not an absolute conveyance.17

14. Vernon v. Bethell, 2 Eden, 110; Villa v. Rodriguez, 12 Wall. (U. S.) 323, 20 L. Ed. 406; Burton v Perry, 146 111. 71, 34 N. E. 60; McElhaney v. Shoemaker, 76 Iowa, 416, 41 N. W. 58; Bailey v. Myrick, 50 Me. 571; Baugher v. Merryman, 32 Md. 185; Murray v. Riley, 140 Mass. 490, 6 N. E. 512; Ferris v. Wilcox, 51 Mich. 105, 47 Am. Rep. 551, 16 N. W. 252; Tower v. Fetz, 26 Neb. 706, 18 Am. St. Rep. 795, 42 N. W. 884; Blizzard v. Craigmiles, 7 Lea (Tenn.) 693; De Bruhl v. Maas, 54 Tex. 464; Hyndman v. Hynd-man, 19 Vt. 9, 46 Am. Dec. 171; Skeels v. Blanchard, - Vt. -,

81 Atl. 913.

15. Ante, Sec. 605(c).

16. Fletcher v. Northcross, 97 Cal. XVII, 32 Pac. 328; Adams v Adams, 51 Conn. 544; Rue v. Dole, 107 111. 275; Carroll v. Tomlinson, 192 111. 398, 85 Am. St. Rep. 344, 61 N. E. 484; Bridges v. Linder, 60 Iowa, 190, 14 N. W. 217; Tyg-ret v. Potter, 97 Ky. 54, 29 S. W. 976; Murray v. Riley, 140 Mass. 490, 6 N. E. 512; Bailey v. St. Louis Union Trust Co., 188 Mo. 483, 87 S. W. 1003; Tripler v. Campbell, 22 R. I. 262, 47 Atl. 385; Swarm v. Boggs, 12 Wash. 246, 40 Pac. 941.