Mr. Justice Magruder
delivered the opinion of the Court:
The first question is whether the deed from appellee and her husband to her father, John J. Helm, was an absolute conveyance or a mere mortgage security. The statute says: “Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it he an absolute conveyance in terms, shall be considered as a mortgage." (Starr & Curtis’ Ann. Stat, chap. 95, entitled “Mortgages,” sec. 12, p. 1636.)
A deed, absolute on its face, may be shown by parol to be a mortgage. The law will, however, presume, in the absence of proof to the contrary, that such a deed is what it purports to be—an absolute conveyance. The party, who claims an absolute deed to be a mortgage, must sustain his claim by proof sufficient to overcome this presumption of the law. Before a deed, absolute in form, will be held to be a mortgage, the evidence must be clear, satisfactory and convincing. It must be made to appear clearly, that such a conveyance was intended to be a mortgage at the time of its execution. The question is one of intention to be ascertained from all the circumstances. (Sharp v. Smitherman, 85 Ill. 153; Bartling v. Brasuhn, 102 id. 441; Bentley v. O'Bryan, 111 id. 53; Workman v. Greening, 115 id. 477.)
An examination of the testimony is necessary in order to see what the real intention of the parties was. It is not clear from the evidence whether appellee’s mother died before or after July 1, 1874. But it is admitted by counsel on both sides, that John J. Helm had a life interest as tenant by the curtesy in the one-seventh part of the premises in question, which appellee inherited from her deceased mother. When she deeded her one-seventh interest to her father on January 10, 1882, she was only twenty years old, and had then been married only about six months.
Appellee swears, that her father proposed to her to advance $1000 to her husband, James S. Boyd, to start him in business ; that her father said he did not want the land, and that the payment of the $1000 was merely an advancement made to help her and her husband, and that it would all come back to her; that he told her the land had been left to her by her mother and -should all come back to her and her children; that she never asked her father for money, when he proposed to advance money on the land; that she never offered to sell the land to him and he never offered to buy it; that, when she signed the deed, he said to her: “Ton and Jim are young yet and 1 merely do this to have a little jurisdiction over it; as for the deed being recorded there shall never be a scratch of the pen against your property; as far as the $1000 is concerned I will make that right with the other children;” that, in July, 1885, when she learned that her father had recorded the deed from her and had made a deed of the land to her brother, the appellant, she asked him about it, and he replied: “I transferred to Jimmy Helm under the same conditions that I got it from you, and he is to let you have it back; I did it to keep Annie (the second wife) and her children from getting a foothold; * * * your brother will do what is right; ” that, when she made the deed to her father, she did not know how much land she owned or was conveying or anything about its value; that, an hour after she made the deed, her father-paid $500 and the balance in small amounts from time to time; that there was no agreement between her and her father about re-paying him the $1000, etc.
James S. Boyd swears, that in'November and December, 1881, and again about January 1, 1882, John J. Helm proposed to advance money to him to go into business by buying an interest in a printing office, and said he would take a quitclaim deed on Helen’s portion of the property, and let them have $1000, part of which he would pay next morning; that “he requested me to explain the matter to my wife; he said for me to have no fears, for the amount would all come back to us children, and he would make it satisfactory with the other children;” that John J. Helm “said he took the deed to have a little jurisdiction over us and the amount he advanced us, as we were both young, and that the deed should never be recorded;” that he talked with his wife and told her to do what she thought best and she said she was satisfied her father would “stick to what he says;” that the next morning he told Mr. Helm his wife “was willing to get or borrow the money;” that neither he nor his wife knew the amount or value the deed called for; that he never offered to sell his wife’s land to her father nor asked him to furnish money to go into business with; that, when the deed was made, Mr. Helm said: “I merely advanced this much money on the place; * * * eventually this will all come back to her; I will see that it is made up to the other heirs;” that his wife’s father never-stated that he expected the $1000 to he paid hack to him and never asked for it.
Annie V. Helm, widow of John J. Helm and step-mother of appellee, swears that her husband told her, before Mrs. Boyd made the deed to him, that he wanted to get the deed to keep them from disposing of the land to Mr. Gray (the brother of Helm’s first wife); that, after her husband received the deed, he said he intended to give it back to appellee, and merely wanted to get it in such a way that she could not dispose of it; that he never had the deed recorded on that account; that appellant wrote to his father advising the latter to get a deed from Helen to prevent the land going into Gray’s hands, and that such letter was sent to Mrs. Malcom Eastwood, (appellant’s sister), to prevent it from falling into the wrong hands; that on the evening before she and her husband conveyed the premises to appellant, her husband said to her: “He (appellant) wants me to make that property over to him and I don’t want to do it;” that she (witness) did not want to sign the deed to James, and reminded her husband of his promise to give the land back to Helen, and he said that “Jimmie would make it all right with her.”
Jane Helton swears: “A short time before John J. Helm made the deed to James M. Helm for said lands I heard said John J. say Jimmie would hold the property for Ella the same as he had, and Mrs. Helm objected to doing it.”
George W. Cline, the attorney who drew the deed, made by appellee to her father, swears that, before the deed was executed, John J. Helm told him, that he wanted the deed so that he could control the property, and keep Boyd from disposing of it “if he got to drinking,” and that he was afraid Gray might get hold of it; that Helm also told him, that the property would go to Ella at his death and that “he did not want it to get mixed up with his other property.”
The testimony of Catharine A. Wintermute confirms the evidence of appellee and Annie Y. Helm in several particulars.
There is a considerable amount of testimony in the record as to the value of the land. After a careful examination of it, we are satisfied that appellee’s one-seventh interest in the property, notwithstanding the fact that it was an undivided interest and subject to her father’s life estate, was worth very much more than $1000, when she made the deed to her father and when the latter made his deed to appellant.
Appellant testified as follows: “About the first of 1885, said John J. Helm told me he had bought Mrs.
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Mr. Justice Magruder
delivered the opinion of the Court:
The first question is whether the deed from appellee and her husband to her father, John J. Helm, was an absolute conveyance or a mere mortgage security. The statute says: “Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it he an absolute conveyance in terms, shall be considered as a mortgage." (Starr & Curtis’ Ann. Stat, chap. 95, entitled “Mortgages,” sec. 12, p. 1636.)
A deed, absolute on its face, may be shown by parol to be a mortgage. The law will, however, presume, in the absence of proof to the contrary, that such a deed is what it purports to be—an absolute conveyance. The party, who claims an absolute deed to be a mortgage, must sustain his claim by proof sufficient to overcome this presumption of the law. Before a deed, absolute in form, will be held to be a mortgage, the evidence must be clear, satisfactory and convincing. It must be made to appear clearly, that such a conveyance was intended to be a mortgage at the time of its execution. The question is one of intention to be ascertained from all the circumstances. (Sharp v. Smitherman, 85 Ill. 153; Bartling v. Brasuhn, 102 id. 441; Bentley v. O'Bryan, 111 id. 53; Workman v. Greening, 115 id. 477.)
An examination of the testimony is necessary in order to see what the real intention of the parties was. It is not clear from the evidence whether appellee’s mother died before or after July 1, 1874. But it is admitted by counsel on both sides, that John J. Helm had a life interest as tenant by the curtesy in the one-seventh part of the premises in question, which appellee inherited from her deceased mother. When she deeded her one-seventh interest to her father on January 10, 1882, she was only twenty years old, and had then been married only about six months.
Appellee swears, that her father proposed to her to advance $1000 to her husband, James S. Boyd, to start him in business ; that her father said he did not want the land, and that the payment of the $1000 was merely an advancement made to help her and her husband, and that it would all come back to her; that he told her the land had been left to her by her mother and -should all come back to her and her children; that she never asked her father for money, when he proposed to advance money on the land; that she never offered to sell the land to him and he never offered to buy it; that, when she signed the deed, he said to her: “Ton and Jim are young yet and 1 merely do this to have a little jurisdiction over it; as for the deed being recorded there shall never be a scratch of the pen against your property; as far as the $1000 is concerned I will make that right with the other children;” that, in July, 1885, when she learned that her father had recorded the deed from her and had made a deed of the land to her brother, the appellant, she asked him about it, and he replied: “I transferred to Jimmy Helm under the same conditions that I got it from you, and he is to let you have it back; I did it to keep Annie (the second wife) and her children from getting a foothold; * * * your brother will do what is right; ” that, when she made the deed to her father, she did not know how much land she owned or was conveying or anything about its value; that, an hour after she made the deed, her father-paid $500 and the balance in small amounts from time to time; that there was no agreement between her and her father about re-paying him the $1000, etc.
James S. Boyd swears, that in'November and December, 1881, and again about January 1, 1882, John J. Helm proposed to advance money to him to go into business by buying an interest in a printing office, and said he would take a quitclaim deed on Helen’s portion of the property, and let them have $1000, part of which he would pay next morning; that “he requested me to explain the matter to my wife; he said for me to have no fears, for the amount would all come back to us children, and he would make it satisfactory with the other children;” that John J. Helm “said he took the deed to have a little jurisdiction over us and the amount he advanced us, as we were both young, and that the deed should never be recorded;” that he talked with his wife and told her to do what she thought best and she said she was satisfied her father would “stick to what he says;” that the next morning he told Mr. Helm his wife “was willing to get or borrow the money;” that neither he nor his wife knew the amount or value the deed called for; that he never offered to sell his wife’s land to her father nor asked him to furnish money to go into business with; that, when the deed was made, Mr. Helm said: “I merely advanced this much money on the place; * * * eventually this will all come back to her; I will see that it is made up to the other heirs;” that his wife’s father never-stated that he expected the $1000 to he paid hack to him and never asked for it.
Annie V. Helm, widow of John J. Helm and step-mother of appellee, swears that her husband told her, before Mrs. Boyd made the deed to him, that he wanted to get the deed to keep them from disposing of the land to Mr. Gray (the brother of Helm’s first wife); that, after her husband received the deed, he said he intended to give it back to appellee, and merely wanted to get it in such a way that she could not dispose of it; that he never had the deed recorded on that account; that appellant wrote to his father advising the latter to get a deed from Helen to prevent the land going into Gray’s hands, and that such letter was sent to Mrs. Malcom Eastwood, (appellant’s sister), to prevent it from falling into the wrong hands; that on the evening before she and her husband conveyed the premises to appellant, her husband said to her: “He (appellant) wants me to make that property over to him and I don’t want to do it;” that she (witness) did not want to sign the deed to James, and reminded her husband of his promise to give the land back to Helen, and he said that “Jimmie would make it all right with her.”
Jane Helton swears: “A short time before John J. Helm made the deed to James M. Helm for said lands I heard said John J. say Jimmie would hold the property for Ella the same as he had, and Mrs. Helm objected to doing it.”
George W. Cline, the attorney who drew the deed, made by appellee to her father, swears that, before the deed was executed, John J. Helm told him, that he wanted the deed so that he could control the property, and keep Boyd from disposing of it “if he got to drinking,” and that he was afraid Gray might get hold of it; that Helm also told him, that the property would go to Ella at his death and that “he did not want it to get mixed up with his other property.”
The testimony of Catharine A. Wintermute confirms the evidence of appellee and Annie Y. Helm in several particulars.
There is a considerable amount of testimony in the record as to the value of the land. After a careful examination of it, we are satisfied that appellee’s one-seventh interest in the property, notwithstanding the fact that it was an undivided interest and subject to her father’s life estate, was worth very much more than $1000, when she made the deed to her father and when the latter made his deed to appellant.
Appellant testified as follows: “About the first of 1885, said John J. Helm told me he had bought Mrs. Boyd’s share uf her mother’s estate; that he had advised her not to sell it, and told her that at his death the property would be worth more than she could then realize on it, on account of his life estate; that she insisted on his buying it, and said if he did not she would sell to some one else; that he bought the property to keep it from falling into other hands, and jt&id her $1000 for it, and that he had to borrow money to pay for it. He proposed that I buy it from him at the same price, to prevent Mrs. Helm No. 2 and her children getting a foothold in my estate.”
Mary W. Helm, a sister of appellant and appellee, testified on behalf of appellant as follows: “I heard a conversation between father and complainant, in which he advised her not to sell her interest in said lands. He told her it would be worth more at his death than she could get for it- then. She wanted $1200, and he told her he could not give more than $1000; that he did not think any one would give more than that when they could not get possession until he died. She said she would rather have the money then to buy a homestead. They were on the front porch, and I was in the hall. I think this was in July, 1881. I also heard Pa tell Mr. Boyd that he thought Ella was very foolish to sell her land.”
John J. Helm, Jr., and J. B. Eastwood testified as to declarations of John J. Helm to the effect that he purchased the property, but, as these declarations were made in his own favor and in the absence of appellee, they were clearly incompetent.
The circuit judge found that the deed from appellee to her father was a mere security, and we are unable to say that the evidence does not sustain his finding.
The relation, in which John J. Helm stood to his daughter, naturally gave him great influence over her. The price, which he is claimed by appellant to have paid her for her property, was greatly below its real value. Her statement that he promised not to record the deed is confirmed by the fact, that •such deed, although executed on January 10, 1882, was not, as matter of fact, recorded in White county until June 9,1884, nor in Wabash county until January 21, 1885.
It is true, that she did not agree to pay back the $1000 at a definite time. Her father would appear to have held out to her the idea, that she would get enough from his estate to pay back the $1000, or that there would be enough coming to her from his estate to cancel the indebtedness of $1000. Still, the impression made by the evidence is, that, if he did not actually practice a fraud upon her, he induced her to deed to him her property under the belief that in some way it was to come back to her, and that she was not to be troubled about re-paying the amount advanced to her. We said in Workman v. Greening, supra: “If it shall appear, no matter what the form of the transaction, that the conveyance is, in fact, hut an indemnity or security, it will be held a mortgage, and the character of liability against which indemnity is intended, or the kind or dignity of indebtedness intended to be secured, is unimportant.”
The next question is, whether appellant had notice of appellee’s rights when he received the deed from his father of his sister’s one-seventh interest. There is testimony, that he had actual notice of such rights. Mrs. Helm, who is a disinterested witness, swears, that, when she and her husband were having a conversation about her signing the deed to appellant, and while she was reminding him of his promise to give the land back to appellee, and was refusing to sign the deed he wanted her to sign, the appellant was in the adjoining room or hall and called out to his father, “make her sign it,” showing that he heard the conversation.
The decree directs, that there shall be returned to appellant, the $1000, which he paid to his father, with interest thereon, subject only to the deduction of rents received by him from the property. We think the decision of the court below does justice between the parties.
The decree of the circuit court is affirmed.
Decree affirmed.