Vol. II.] PLUMER V. GUTHRIE. [No. 10. Guthrie, and for Guthrie's benefit, he, Guthrie, paying $500 of the consideration, and retaining the possession, and that the $9,000 paid by Plumer was an advancement which the deed was intended to secure, the mortgage debt, which would otherwise have been extinguished, surviving to the use of Plumer, the whole arrangement would only operate as a mortgage in favor of Plumer, which the subsequent lease could in no wise affect. The court answered the points in the general charge, reading to the jury each point before answering it. The court charged: “1. J. W. Guthrie, the defendant, having entered into business relations with one N. A. Lowry, upon settlement, was found indebted a considerable sum of money. "By an arrangement with Lowry's executors, with the consent of Guthrie, Arnold Plumer became, in October, 1852, the purchaser of Lowry's claims, and also of all of the collateral securities and lumber contracts, which Lowry had from, or entered into, with Guthrie for the sum of $11,000. "In addition to the claims which Lowry held and assigned, it is alleged by plaintiff, that Arnold Plumer advanced a large amount of money in aid of Guthrie, and that on account of these claims there exists a large balance against Guthrie which has not been paid. "The defendant alleges that out of the collaterals placed in Lowry's hands, assigned to Plumer, and from the proceeds of lumber paid to him, Plumer has received a greater sum than Guthrie's entire indebtedness to him. "2. In addition to this it is alleged that Guthrie was largely indebted to the estate of William Bingham. That to secure this indebtedness he executed a mortgage, in the penal sum of $33,000, conditioned for the payment of $16,500, at the times and manner therein mentioned. That this mortgage was assigned to Lane, Meylert, and others. That upon a judgment foreclosing this mortgage, the property in controversy was sold, and title thereto ultimately became regularly vested in S. M. Lane. That negotiations were opened, looking to the purchase of this property from Lane, in which Guthrie and Plumer participated, and which finally resulted in a transfer of Lane's interest to Arnold Plumer for a consideration in the deed mentioned. Out of these transactions, extending over a period of more than twenty years, this controversy has arisen. "The facts and principles supposed to be important in determining the rights of the parties have been referred to by the counsel for plaintiff and defendant, in certain written propositions submitted, and the instruction of the court requested thereon, with the view, under such instructions, to enable you rightly to determine this controversy. Premising this single remark, that each fact assumed or stated in the several points must be found by you upon sufficient evidence, and that fraud is not to be presumed, we read and answer these propositions as follows: "The plaintiff's first point we answer in the affirmative. "The plaintiff's second point we also answer in the affirmative, save as to so much of the point as affirms it to be the duty of the court to give binding instructions to the jury to find for the plaintiff. The existence or Vol. II.] PLUMER v. GUTHRIE. [No. 10. non-existence of a trust, is not the only question raised in the case, we cannot therefore answer this part of the point as requested. "The fourth point of the plaintiff we answer in the negative. "The fifth point of plaintiff we answer in the affirmative, thus qualified: That if the facts assumed in this point be all that relate to the transactions therein referred to, but if in addition to these, the facts assumed in defendant's first point entered into and formed a part of the transaction, the conclusion stated in plaintiff's fifth point would not follow, but that stated in defendant's first point would follow: the defendant's first point is therefore answered in the affirmative. "The facts referred to in both of these points we leave to the jury. "We answer the plaintiff's sixth point in the affirmative. "We answer the plaintiff's seventh point in the negative. "We answer the defendant's second and third points in the affirmative, but remark that the evidence proving the facts therein assumed must be clear, explicit, and unequivocal. "We answer the plaintiff's third, and the defendant's fourth points as follows: Do all of the facts and circumstances in the case clearly prove that Guthrie was a borrower, arranging for security to his lender, and Plumer a lender advancing money and taking the land, in the form it was given, as security for the money advanced? If this was the nature of the transaction, we answer the plaintiff's third point in the negative, and defendant's fourth point in the affirmative. But, if the land was purchased by Plumer in trust under the circumstances alleged by plaintiff, the conclusion stated by the plaintiff in his third point would follow, and that stated by the defendant in his fourth point would not. The determination of the facts is for the jury. "The plaintiff's eighth point and defendant's fifth point we thus answer. Do all of the facts and circumstances in the case relating to the transactions referred to in these points clearly prove that Guthrie was a borrower, arranging for security to his lender, and was Plumer a lender, advancing his money and taking the land, in the form it was given, as a security? The facts and circumstances proving this must be clear, explicit, and unequivocal. Whether the relation above stated be thus proven, we leave to the jury. This, we think, substantially answers the plaintiff's eighth point in the negative and defendant's fifth point in the affirmative. "The principal legal questions in the case may be stated thus: "1. If the evidence satisfies you that the property was purchased by Plumer in trust for Guthrie, your verdict should be for the plaintiff. "2. If the evidence proves that it was purchased by Plumer with the understanding between Plumer and Guthrie thus to protect it against the creditors of Guthrie, the plaintiff is entitled to recover. "3. If the property was conveyed to Plumer to be retained by him as security for money advanced by him in saving the title for Guthrie, you will then inquire, according to the principles we have already referred to, whether he has been fully paid; if not, find and state the amount. Also find the time in which it ought to be paid. In the event of such finding, the time ought not to be unreasonable. If you come to this last conclusion, we will mould your verdict upon your finding the facts. If you find that the land was obtained and held as security for money advanced, and all Vol. II.] PLUMER V. GUTHRIE. [No. 10. the money has been fully paid, your finding should be generally for the defendant." The jury found" for the plaintiff the land mentioned in the writ, to be released upon the payment of $4,000, with interest thereon from this date, to be paid as follows, to wit: One fourth on the 5th day of December, A. D. 1872; one fourth on the 5th of March, 1873; one fourth thereof on the 5th day of June, 1873, and one fourth on the 5th day of September, 1873, with costs of suit." The plaintiff took a writ of error, and assigned for error: 1. The admission of that portion of Lane's deposition objected to. 3-7. The answers to the plaintiff's 3d, 4th, 5th, 6th, and 7th points. 8-12. The answers to the 1st, 2d, 3d, 4th, and 5th points of the defendant. J. B. Knox & J. Campbell, for plaintiff in error. Lane's testimony was of conversations with Guthrie and Lane when Plumer was not present, and Guthrie would thus be making evidence for himself, which cannot be done. Duvall v. Darby, 2 Wright, 56; Romig v. Romig, 2 Rawle, 248; United States v. Mertz, 2 Watts, 406; Blight v. Schenk, 10 Barr, 292. The parol evidence is of the lightest kind, and it is asked that it should not only overturn the deed, but also set up a title of a tenant against his landlord, without surrendering the possession. This cannot be done. Porter v. Mayfield, 9 Harris, 263; Boyer v. Smith, 5 Watts, 55; Bennett v. Fulmer, 13 Wright, 156. In such case as this the judge alone is the chancellor, and the verdict of the jury is only advisory. Todd v. Campbell, 8 Casey, 252; De France v. De France, 10 Ib. 385; Mc Ginity v. McGinity, 13 P. F. Smith, 38. G. A. Jenks & W. L. Corbett (with whom was T. S. Wilson), for defendant in error. The question whether the conveyance was absolute or as security was properly submitted to the jury. Kunkle v. Wolfersberger, 6 Watts, 126. The relation of landlord and tenant is not inconsistent with that of mortgagor and mortgagee. Doe v. Maisey, 8 Barn. & Cress. 767; Hammet v. Dundas, 4 Barr, 181; Horn v, Pattison, 1 Grant, 304. The mere delay does not affect this question. Odenbaugh v. Bradford, 17 P. F. Smith, 97; Harper's Appeal, 14 Ib. 315. Mr. Justice MERCUR delivered the opinion of the court. That a deed, absolute on its face, may be shown by parol to be a mortgage only, between the parties, is too well established to require a citation of authorities. The proof, however, of the agreement necessary to so change its character must be clear, explicit, and unequivocal. It should not rest on the subsequent admissions and declarations of the alleged mortgagee only, but must establish an agreement substantially contemporaneous with the execution and delivery of the deed. Less than this would not only conflict with the rules of evidence which prescribe the manner in which a written instrument may be changed by parol, but also defeat the wise provisions of the statute of frauds. On and before the 8th of May, 1857, the defendant was the owner of the lands in question. On that day all his title therein was divested by a sheriff's sale. There was no agreement by which the defendant was to retain or acquire any equities therein. The purchasers took a clear and unquestionable title. By means of subsequent conveyances and devise Vol. II.] PLUMER V. GUTHRIE. [No. 10. this title was regularly transmitted to the plaintiff. The plaintiff further proved that nearly seven years after the land was conveyed to her devisor, and while he held it, the defendant entered into a written lease with him for these lands for the term of one year, in consideration of the defendant's agreeing to pay $100 and one third of all the hay and grain produced on the premises, to pay all taxes, to cut no timber, and to surrender possession, &c. Thus the plaintiff showed a clear paper title. The defendant sought to convert the deed given to the plaintiff's devisor into a mortgage by an alleged parol agreement. The first assignment of error is to the admission of certain parts of the deposition of Samuel M. Lane. He was one of the purchasers at sheriff's sale, and after acquiring the estate of his co-tenants, conveyed to Arnold Plumer, under whom the plaintiff now claims. The portion of the deposition admitted under exception relates to conversations and negotiations between the defendant and the witness. They were not in the presence of the plaintiff's devisor. They were not proven to have ever been communicated to him. They occurred some ten months prior to the execution and delivery to him of the deed. They cannot therefore form any part of the res gesta. It was, then, manifestly wrong to admit the declarations of the defendant and negotiations between him and the witness, not communicated to the devisor of the plaintiff. This assignment is sustained. The second assignment is not according to the rules and must be disregarded. The third and fourth were not pressed. We discover no error in the fifth and eighth assignments. We think the answers of the learned judge were correct; but a failure to connect these transactions with Plumer's purchase of the land makes them irrel evant. The eleventh assignment relates to the effect which should be given to the lease executed between Plumer and the defendant. The point submitted by the defendant, and the qualified affirmance thereof by the court, seems to declare that no greater effect shall be given to the lease than as evidence, indicating the nature and design of the original contract between the parties, and their intention in making it. In so restricting its effect to that particular time, we think the court erred. There was no evidence of any fraud or imposition in procuring the lease. Hence if it was admitted that Plumer originally acquired the title in trust for the defendant, yet inasmuch as this lease was executed so many years thereafter, it was evidence at least of the termination of that trust and the abandonment by the defendant of all interest in the land other than that of lessee. The remaining assignments may be considered together. The defendant seeks by oral testimony to convert into a mortgage a deed absolute on its face. To do this he must prove a contract to that effect. Rankin v. Simpson, 7 Harris, 471. It was however said in Rhines et al. v. Baird, 5 Wright, 256, that the agreement need not be express, but it may be inferred from facts and circumstances inconsistent with its being an absolute conveyance. We will add, that knowledge of those facts and circumstances must be brought home to the owner of the legal title before he shall be affected thereby. A careful examination of the evidence Vol. II.] PLUMER v. GUTHRIE. [No. 10. fails to show any conversation between the defendant and Plumer in relation to the latter's purchasing or taking a conveyance of the land for his benefit. None such is shown to have either preceded, or to have been contemporaneous with, the execution of the deed. The parties to the alleged agreement were never brought face to face. No communication, either verbal or written, ever passed between them indicating it was a mortgage, although Plumer lived ten years after he procured the conveyance. The defendant however relies mainly on facts and circumstances shown, after this great lapse of time, and after the death of Plumer, to prove the conveyance was a mortgage only. Such testimony should be received with caution. When received, if it fails to satisfy the court as well as the jury, - if it does not make out a case in which a chancellor would decree a conveyance, it should not be submitted to the jury. Rankin v. Simpson, supra; Todd v. Campbell et al. 8 Casey, 250; De France et al. v. De France et al. 10 Casey, 385; Bennett et ux. v. Fulmer, 13 Wright, 155; Me Ginity v. Me Ginity, 13 P. F. Smith, 38. The defendant showed there were other large and unsettled business transactions between him and Plumer. He claims that the latter was, at the time of the conveyance, indebted to him in an amount equal to the $9,000 which he paid for the land, or if not, that it was a loan by Plumer to him. No settlement of those transactions was ever made by the parties. It is not shown that Plumer admitted the existence of such an indebtedness, or of any indebtedness, or that the $9,000 was a loan. It is true, Lane thinks, but will not be certain, that about a year before the conveyance to Plumer, the latter said the defendant wanted him to get this property for him, the defendant. Nothing however was said at the time of the conveyance to Plumer by any one indicating any such purpose. The fact that a jury may now find that if a settlement had been made between the defendant and Plumer at the time of the conveyance, the latter would have fallen in debt to the former, or that at Plumer's death he was indebted to the defendant in other business transactions, is insufficient of itself to prove that he accepted the conveyance as a mortgage. Nor does the fact that the defendant, unknown to Plumer, paid Lane $500 change the character of the written instrument. It cannot with any show of reason be said that the action of Plumer was influenced by the acts of others of which he had no notice. The burden of proof rests on the defendant. It will not do to establish a mere dim probability only of the correctness of his theory. He must go further and make the proof clear and explicit. If such proof had been given of an agreement at the execution of the deed, then the testimony of F. B. Guthrie would have been strong evidence of its continuance, and of the payment of the money. All his testimony as to Plumer's declarations. made after he procured the deed fails to establish a previous agreement. Neither in the conversation had in 1853, before the execution of the lease, nor in 1867, when the defendant was in possession under it, did Plumer admit that he had accepted the deed as a mortgage. He admitted a present willingness or intention to convey at some future time, from which it is claimed a legal inference may be drawn that he had so agreed many years before. Such effect cannot be given to his declarations. It would be fraught with great mischief and injustice. Every unexecuted inten |