1. Where parties made an absolute conveyance intending that it be only a mortgage, the court will decree and establish the instrument as a mortgage.
2. To justify a decree establishing an absolute conveyance as a mortgage, the proof that the parties so intended must be clear and convincing.
3. There are three criteria for determining whether an absolute conveyance was intended as a mortgage: (1) was there a debt which was not satisfied by the conveyance but which survived so that the grantee might have sued upon it? (2) was the price paid considerably less than the value of the property granted? (3) what was the conduct of the parties with regard to the property after the date of the deed?
4. After the conveyance in question, the grantee, who had always paid taxes on the property and had paid interest on the mortgages on the property, began collecting the rents, erected a sign on the property advertising it for sale, repaired the house, improved the road running past the property, and paid off the mortgages on the property. The grantors made no attempt to collect the rents nor did they offer to pay taxes or interest, or keep the house in repair. They made no objection to the acts of the grantee in relation to the property. They made no tender of interest on the debt which they allege they secured by giving the absolute conveyance, nor ever inquired as to the receipts or expenses of the grantee in connection with the property. Held, that the action of the parties clearly indicates that the conveyance was an absolute conveyance and not a conveyance by way of security.
PER CURIAM.
The decree under review will be affirmed, for the reasons given in the opinion of Vice-Chancellor Bigelow.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.
For reversal — None.