Skinner, 17 Pick. 213; Rice v. Rice, 4 Pick 349; Harrison v. Trustees, 12 Mass. 456. The covenant in a deed absolute on its face, but intended as a mortgage, or a parol contract made at the time of the execution of the deed, whereby the grantee agrees to pay the debt of the grantor due another person, cannot be enforced by such person against the grantee. Such an agreement is nothing more, in effect, than an agreement to advance the amount of the debt or incumbrance as a loan upon the security of the land conveyed. Lowe v. Turpic, 147 Ind. 652 (44 N. E. Rep. 25; 37 L. R. A. 233). Citing, Root v. Wright, 84 N. Y. 72 (38 Am. Rep. 495); Garnsey v. Rogers, 47 N. Y. 233 (7 Am. Rep. 440); Pardee v. Treat, 82 N. Y. 385. Where an absolute deed is declared to be a mortgage the grantee's rights are simply those of a mortgagee. Lowe v. Turpie, 147 Ind. 652 (44 N. E. Rep. 25; 37 L. R. A. 233). Particular transaction held to constitute an absolute conveyance and not a mortgage. Vance v. Anderson, 113 Cal. 532 (45 Pac. Rep. 816).

Sec. 563. Action to declare deed a mortgage-Suficiency of proof. An action to declare an absolute deed a mortgage may be maintained without tender of payment of the debt secured. Bradbury v. Davenport, 114 Cal. 593 (46 Pac. Rep. 1062; 55 Am. St. Rep. 92). Where material, in a collateral proceeding, a deed absolute on its face may be shown to be in fact a mortgage, without bringing a bill in equity to have it so declared. Backus v. Burke, 63 Minn. 272 (65 N. W. Rep. 459). In an action to have a deed absolute on its face declared a mortgage the plaintiff cannot compel the defendant to foreclose, and in such a case the judg ment should be that upon the payment of the amount due within a reasonable time, to be fixed by the court, the mortgage shall be decreed to be satisfied, and that if, within such time said money be not paid, the action should be dismissed. Cline v. Robins, 112 Cal. 581 (44 Pac. Rep. 1023). Citing, Cowing v. Rogers, 34 Cal. 648. Parol evidence is admissible to show an absolute deed to be a mortgage. Libby v. Clark, 88 Me. 32 (33 Atl. Rep. 657); Stith v. Peckham, 4 Okla. 254 (46 Pac. Rep. 664); Barnes v. Crockett, 4 Kan. App. 777 (46 Pac. Rep. 997). But the evidence must be clear and

convincing. Reeves v. Abercrombie, 108 Ala. 535 (19 So. Rep. 41). An absolute deed cannot be converted into a mortgage by the testimony of the grantor uncorroborated by any other witness, circumstance or fact. Barber v. Lafavour, 176 Pa. St. 331 (35 Atl. Rep. 202; 53 Am. St. Rep. 672). Nor will an absolute conveyance of a mortgagor to the children of the mortgagee be held to be a mortgage on the testimony of the original mortgagee alone, unless such testimony be clear and decisive. Lipscomb v. Jack, Miss. (20 So. Rep. 883). Particular fact cases in which the transaction was held to be a mortgage. Riley v. Starr, 48 Neb. 243 (67 N. W. Rep. 187); Froud v. Merritt, 99 Ia. 410 (68 N. W.. Rep. 728); Wilson v. Thompson, (43 Pac. Rep. 557); Cline v. Robbins, 112 Cal. 581 (44 Pac. Rep. 1023); Hall v. Lewis, 118 N. C. 509 (24 S. E. Rep. 209) ; Giddens v. Powell, 108 Ala. 621 (19 So. Rep. 21); Elston v. Comer, 108 Ala. 76 (19 So. Rep. 324); Williams v. Reggans, 111 Ala. 621 (20 So. Rep. 614). Evidence in particular cases held insufficient to show an absolute deed to be a mortgage. Stall v. Jones, 47 Neb. 706 (66 N. W. Rep. 653); Reeves v. Abercrombie, 108 Ala. 535 (19 So. Rep. 41).

Idaho

Sec. 564. Priority of mortgages. A mortgagee takes subject to liens given a priority by statute. Jenckes v. Jenckes, 145 Ind. 624 (44 N. E. Rep. 632). The established priority of mortgages may be changed by agreement between the holders thereof, New Jersey Bldg., L. & Inv. Co. v. Bachelor, 54 N. J. Eq. 600 (35 Atl. Rep. 745); and the stipulations of an agreement fixing the priority of mortgages may be enforced in the application of the proceeds arising from a foreclosure sale. New Eng. Loan & Tr. Co. v. Wood, Kan. App. 624 (42 Pac. Rep. 940). The holder of a prior mortgage first of record may make a valid parol agreement giving priority to a subsequent mortgage executed by the mortgagor to obtain money with which to erect buildings on the land, but such agreement is not binding upon one acquiring rights under the first mortgage without notice of the agreement. Loewen v. Forsee, 137 Mo. 29 (35 S. W. Rep. 1138). The holder of a first mortgage who has knowledge of the existence of a second mortgage loses his priority by releasing

his first mortgage and taking a new one in its stead although it was his understanding with the mortgagor that he would arrange matters with the second mortgagee so as to give the new mortgage the same priority as the one in place of which it was executed. Workingman's Bldg & Sav. Ass'n v. Williams, Tenn. (37 S. W. Rep. 1019). The fact that a note secured by a mortgage is negotiable and purchased before due does not aid the purchaser thereof as to the priority of such mortgage, but it remains the same as when in the hands of the original holder except as aided by the registry laws. Butler v. Bank of Mazeppa, 94 Wis. 351 (68 N. W. Rep. 998).

Sec. 565.

Purchase money mortgage-Priority. The statute of New Jersey (Revision, p. 167, § 77) giving purchase money mortgages priority over previous judgments applies to a mortgage given by a purchaser for money borrowed from a third party to pay part of the purchase price, and such priority may be shown by parol. Hopler v. Cutler, N. J. Eq. (34 Atl. Rep. 746). A mortgage given by a vendee, simultaneously with his acquiring title, to a third person for borrowed purchase money is a purchase-money mortgage, New Jersey Bldg., L. & Inv. Co. v. Bachelor, 54 N. J. Eq. 600 (35 Atl. Rep. 745); but a mortgage executed by a vendee before he has received his deed, to a third person, to secure the payment of money borrowed to make the cash payment, is not prior to a mortgage subsequently given by the vendee at the time he receives his deed to secure the balance of the purchase price. Protection Bldg. & L. Ass'n v. Knowles, 54 N. J. Eq. 519 (34 Atl. Rep. 1083). The court say: "A purchaser who receives a deed, and, as part of the same transaction, delivers a mortgage to the vendor for part of the purchase money, has, so far as that mortgage is concerned, only such an instantaneous and temporary seisin that the purchase-money mortgage must be superior to all conveyances or incumbrances executed prior to the inception of his estate. This is the law as settled in reference to prior judgments, mechanics' liens, and other prior claims against the purchaser (Wallace v. Silsby, 42 N. J. L. 1, 8 and cases cited; Clark v. Butler, 32 N. J. Eq. 664), and must for the same equitable

As was said by

N. Y. 541, 515,

reasons, be applied to mortgages on the property executed by a mortgagor before he receives his deed. Church, C. J., in Dusenbury v. Hulbert, 59 'A vendor of real estate has no occasion to examine the records for incumbrances created prior to his conveyance. He has the power to protect himself by a qualified or conditional transfer, or by any legal mode of creating a lien to secure himself for unpaid purchase money. When he conveys and instantly takes a conveyance as such security, no authority is needed to demonstrate the gross injustice of permitting a prior mortgage from intervening to his prejudice.''

Sec. 566. Assumption of mortgages. A corporation having power to purchase real estate is bound by its agreement to assume and pay an incumbrance thereon. Wools Inv. Co. v. Palmer, 8 Colo. App. 132 (45 Pac. Rep. 237). A grantee of mortgaged lands who assumes and agrees to pay the mortgage debt is personally liable for any deficit remaining unpaid after foreclosure. Green v. Stone, 54 N. J. L. 387 (34 Atl. Rep. 1099; 55 Am. St. Rep. 577); Solicitors' Loan & T. Co. v. Robins, 14 Wash. 507 (45 Pac. Rep. 39). Dunbar, J., dissenting. A grantee assuming and agreeing to pay a mortgage upon the premises becomes personally liable to the mortgagee for any deficiency upon foreclosure although his grantor made no such covenant with the mortgagor from whom he acquired title, but subsequently, by a separate instrument, agreed with the mortgagee to pay any deficiency. Wager v. Link, 150 N. Y. 549 (44 N. E. Rep. 1103). A grantee who assumes and agrees to pay a mortgage debt existing against property conveyed to him cannot retain possession of it and escape liability on his agreement by alleging want of consideration. Stuyvesant v. Western Mort. & Inv. Co., 22 Colo. 28 (43 Pac. Rep. 144). He is estopped from questioning the validity of the mortgage itself or the notes which it secures. Gowans v. Pierce, 57 Kan. 180 (45 Pac. Rep. 586). He cannot defend against the debt on the ground of usury, Dickerson v. Bankers' Loan & Inv. Co., 93 Va. 498 (25 S. E. Rep. 518); or defeat his liability by showing a contrary parol agreement with his vendor: or by showing the existence of cross demands in his favor against his vendor.

Blood v. Crew Levick Co., 177 Pa. St. 606 (35 Atl. Rep. 871; 55 Am St. Rep. 742). A covenant assuming and agreeing to pay a particular mortgage will not be construed to embrace another and distinct mortgage. Moore v. Graves, 97 Ia. 4 (65 N. W. Rep. 1008). In order for a grantee of premises subject to a mortgage to become personally liable for its payment it must be shown that he accepted a deed in which he assumed and agreed to pay the mortgage debt. Rutland Sav. Bank v. White, 4 Kan. App. 435 (46 Pac. Rep. 29). A deed reciting that the land was free from incumbrances except a certain "incumbrance, and also the taxes of '92, which the party of the second part agrees and assumes to pay," was held to express an intention on the part of the grantee to assume the payment of both the incumbrance and the taxes. Woods Inv. Co. v. Palmer, 8 Colo. App. 132 (45) Pac. Rep. 237). The liability of a grantee who merely assumes the payment of a mortgage on land conveyed to him depends upon the personal liability of his immediate grantor. If such grantor is not so liable, the mortgagee cannot claim any deficiency from such grantee. Morris v. Mix, 4 Kan. App. 654 (46 Pac. Rep. 58). Where W. and wife being the owners of certain lots in the city of D., executed a mortgage thereon, and afterward one of said lets together with other real property in the city of D. are conveyed by Y and wife, whom the record does not show were grantees of W. and wife, or by mesne conveyances from them through other persons, down to Y. and wife, and there is a clause in the deed from Y. and wife to M. that the property is subject to a mortgage of $625, which the grantee assumes, without specifying what portion of the property is subject to the mortgage, or stating by whom the mortgage is given, cr giving any other description of the mortgage, and not showing that the mortgage given by W. and wife is the only mortgage on said property, or what part of the property is subject to such mortgage, the receiving of such deed by M., with such provisions, is so indefinite and uncertain as not to make M. liable to pay the mortgage, or subject to a judgment in a suit of foreclosure of the same. Munsell v. Beals, 5 Kan. App. 736 (46 Pac. Rep. 984).