Cassoday, J.
Whether a given written instrument constitutes a conditional sale, a conveyance, or a mortgage, is a question which has often perplexed the courts. When the language of the instrument is equivocal, the intention of the parties, as evinced by the whole transaction and the attending circumstances, seems to be the true criterion. Goodman v. Grierson, 2 Ball & Beatty, 278; Williams v. Owen, 5 Mylne & Craig, 306; Clark v. Henry, 2 Cow., 324; S. C., [415]*415affirmed, 7 Johns. Ch., 43; Edrington v. Harper, 3 J. J. Marsh., 354; Hughes v. Sheaff, 19 Iowa, 343; Cornell v. Hall, 22 Mich., 377; Rich v. Doane, 35 Vt., 125; Pitts v. Cable, 44 Ill., 105. Thus, in Goodman v. Grierson, supra, Lord Chancellor MaNNebs. in answer to the contention that the transaction conld not be a mortgage because there was no bond collateral to the deed, nor any convenant to pay, said: “ It is quite clear that if the i/ntention were that it should be a mortgage, the absence of a covenant and collateral bond would not make it the less so. This was decided in King v. King, 3 P. Wms., 358, where Lord Talbot said it did.not vary the transaction, for that every mortgage implied a loan, and every loan implied a debt, for which the mortgagor’s personal estate was liable; and although an action of covenant would not lie, still it might be a mortgage.” So Lord Chancellor CotteNham, in Williams v. Owen, supra, said: “ That this court will treat a transaction as a mortgage, although it was made so as to bear the appearance of an absolute sale, 'if it appear that the parties intended it to be a mortgage, is no doubt, true; but it is equally clear that if the parties intended an absolute sale, a contemporaneous agreement for a repurchase, not acted upon, will not, of itself, entitle the vendor to redeem.”
In Edrington v. Harper, supra, Chiéf Justice RobeetsoN, of Kentucky, said: “ It is often very difficult to discriminate between mortgages and conditional sales. Every case must be determined by a consideration of its own peculiar circumstances. The intention of the parties is the only true and infallible test; that intention is to be collected from the condition or conduct of the parties, as well as from the face of the written contract.” This was substantially adopted by the supreme court of Iowa in Hughes v. Sheaff, supra, where Chief Justice Weight added: “And hence the court must take into consideration the price, the circumstances, all the antecedent facts, the situation of the parties, and from these determine [416]*416the true nature of the transaction. These differ, as we know, as the names of the parties differ, and they so influence the determination in each case that it is next to impossible to deduce from them any general, safe, and comprehensive rule.” In Cornell v. Hall, supra, it was held by the supreme court of Michigan that “the only safe criterion in determining controversies arising out of such transactions is the intention of the parties, to be ascertained by considering their situation and the surrounding facts, as well as their writings.”
Where the language of the instrument is equivocal, and the relation of debtor and creditor is not created by the transaction and never existed, and the vendee takes and retains possession of the property, and its value is not perceptibly in excess of the consideration paid, and there is nothing to indicate an intent to transfer the property as a mere security, the transaction has usually been held to be a conditional sale. Goodman v. Grierson, supra; Williams v. Owen, supra; Perry v. Meddowcroft, 4 Beav., 197; Conway v. Alexander, 7 Cranch, 237; Holmes v. Grant, 8 Paige, 243; Baker v. Thrasher, 4 Denio, 493; Saxton v. Hitchcock, 47 Barb., 220; Hughes v. Sheaff, supra; Flagg v. Mann, 14 Pick., 467; Woodward v. Pickett, 8 Gray, 617; Rich v. Doane, supra; West v. Hendrix, 28 Ala., 226; Pearson v. Seay, 35 Ala., 612; Logwood v. Hussey, 60 Ala., 417; Ford v. Irwin, 18 Cal., 117; Henley v. Hotaling, 41 Cal., 22; Slowey v. McMurray, 27 Mo., 113; McNamara v. Culver, 22 Kan., 661; Hoopes v. Bailey, 28 Miss., 328; Smith v. Crosby, 47 Wis., 160. But in several of these cases, as in McNamara v. Culver, it is held that “ the test is the existence or non-existence of a debt. If, after the transaction, no debt remains, there is no mortgage, but only a conditional sale.”
On the other hand, where the relation of debtor and creditor is created by the transaction, or previously existed, and by express language or fair implication continues, and the [417]*417possession is retained by the vendor, and the value of the property is greatly in excess of the consideration paid, the transaction has usually been held to be a mortgage. Clark v. Henry, supra; Roach v. Cosine, 9 Wend., 227; Murray v. Walker, 31 N. Y., 399; Horn v. Keteltas, 46 N.Y., 605; Carr v. Carr, 52 N. Y., 251; Russell v. Southard, 12 How. (U. S.), 139; Villa v. Rodriguez, 12 Wall., 323; Cornell v. Hall, supra; Cooper v. Brock, 41 Mich., 488; Rice v. Rice, 4 Pick., 349; Eaton v. Green, 22 Pick., 526; Murphy v. Calley, 1 Allen, 107; Gifford v. Ford, 5 Vt., 532; Blodgett v. Blodgett, 48 Vt., 32; Pearson v. Seay, 38 Ala., 643; Wilson v. Giddings, 28 Ohio St., 554; Plato v. Roe, 14 Wis., 453; Wilcox v. Bates, 26 Wis., 465; Ragan v. Simpson, 27 Wis., 355; Musgat v. Pumpelly, 46 Wis., 660; Starks v. Redfield, 52 Wis., 349. In Russell v. Southard, supra, Mr. Justice Cuetis said: “ The deed and memorandum certainly import a sale,” and yet from all the evidence in that case they were held to constitute a mere security, and hence a mortgage. In Wilson v. Giddings, supra, the fact that the grantor continued in possession, controlling, using, and improving the property as his own, and receiving and using the rents and profits thereof as his own, and paying the taxes thereon, were regarded as significant. Once a mortgage, always a mortgage, is the rule generally recognized in the cases. So the want of a personal agreement by the borrower to repay the money is not conclusive that the conveyance was not intended as a mortgage, but merely a circumstance to be considered with the other evidence in the case. This was held in Horn v. Keteltas, supra.
Many other cases might be cited to the same effect. The difficulty of discriminating between mortgages and conditional sales grows out of the fact that either through a misapprehension of the law by one or both of the parties, or a design on the part of one or both to conceal the real purpose of the transaction, it is often found to be mixed and com [418]*418fused, and.hence containing some of the incidents of a mortgage, and also of a conditional sale. As a way out of this difficulty, courts have generally held the transaction to be a mortgage in all doubtful cases, because the ends of justice are the more apt to be attained, and fraud and oppression more likely to be prevented, by such a construction. Russell v. Southard, supra; Edrington v. Harper, supra; Hughes v. Sheaff, supra; Cornell v. Hall, supra; Rich v. Doane, supra.
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Cassoday, J.
Whether a given written instrument constitutes a conditional sale, a conveyance, or a mortgage, is a question which has often perplexed the courts. When the language of the instrument is equivocal, the intention of the parties, as evinced by the whole transaction and the attending circumstances, seems to be the true criterion. Goodman v. Grierson, 2 Ball & Beatty, 278; Williams v. Owen, 5 Mylne & Craig, 306; Clark v. Henry, 2 Cow., 324; S. C., [415]*415affirmed, 7 Johns. Ch., 43; Edrington v. Harper, 3 J. J. Marsh., 354; Hughes v. Sheaff, 19 Iowa, 343; Cornell v. Hall, 22 Mich., 377; Rich v. Doane, 35 Vt., 125; Pitts v. Cable, 44 Ill., 105. Thus, in Goodman v. Grierson, supra, Lord Chancellor MaNNebs. in answer to the contention that the transaction conld not be a mortgage because there was no bond collateral to the deed, nor any convenant to pay, said: “ It is quite clear that if the i/ntention were that it should be a mortgage, the absence of a covenant and collateral bond would not make it the less so. This was decided in King v. King, 3 P. Wms., 358, where Lord Talbot said it did.not vary the transaction, for that every mortgage implied a loan, and every loan implied a debt, for which the mortgagor’s personal estate was liable; and although an action of covenant would not lie, still it might be a mortgage.” So Lord Chancellor CotteNham, in Williams v. Owen, supra, said: “ That this court will treat a transaction as a mortgage, although it was made so as to bear the appearance of an absolute sale, 'if it appear that the parties intended it to be a mortgage, is no doubt, true; but it is equally clear that if the parties intended an absolute sale, a contemporaneous agreement for a repurchase, not acted upon, will not, of itself, entitle the vendor to redeem.”
In Edrington v. Harper, supra, Chiéf Justice RobeetsoN, of Kentucky, said: “ It is often very difficult to discriminate between mortgages and conditional sales. Every case must be determined by a consideration of its own peculiar circumstances. The intention of the parties is the only true and infallible test; that intention is to be collected from the condition or conduct of the parties, as well as from the face of the written contract.” This was substantially adopted by the supreme court of Iowa in Hughes v. Sheaff, supra, where Chief Justice Weight added: “And hence the court must take into consideration the price, the circumstances, all the antecedent facts, the situation of the parties, and from these determine [416]*416the true nature of the transaction. These differ, as we know, as the names of the parties differ, and they so influence the determination in each case that it is next to impossible to deduce from them any general, safe, and comprehensive rule.” In Cornell v. Hall, supra, it was held by the supreme court of Michigan that “the only safe criterion in determining controversies arising out of such transactions is the intention of the parties, to be ascertained by considering their situation and the surrounding facts, as well as their writings.”
Where the language of the instrument is equivocal, and the relation of debtor and creditor is not created by the transaction and never existed, and the vendee takes and retains possession of the property, and its value is not perceptibly in excess of the consideration paid, and there is nothing to indicate an intent to transfer the property as a mere security, the transaction has usually been held to be a conditional sale. Goodman v. Grierson, supra; Williams v. Owen, supra; Perry v. Meddowcroft, 4 Beav., 197; Conway v. Alexander, 7 Cranch, 237; Holmes v. Grant, 8 Paige, 243; Baker v. Thrasher, 4 Denio, 493; Saxton v. Hitchcock, 47 Barb., 220; Hughes v. Sheaff, supra; Flagg v. Mann, 14 Pick., 467; Woodward v. Pickett, 8 Gray, 617; Rich v. Doane, supra; West v. Hendrix, 28 Ala., 226; Pearson v. Seay, 35 Ala., 612; Logwood v. Hussey, 60 Ala., 417; Ford v. Irwin, 18 Cal., 117; Henley v. Hotaling, 41 Cal., 22; Slowey v. McMurray, 27 Mo., 113; McNamara v. Culver, 22 Kan., 661; Hoopes v. Bailey, 28 Miss., 328; Smith v. Crosby, 47 Wis., 160. But in several of these cases, as in McNamara v. Culver, it is held that “ the test is the existence or non-existence of a debt. If, after the transaction, no debt remains, there is no mortgage, but only a conditional sale.”
On the other hand, where the relation of debtor and creditor is created by the transaction, or previously existed, and by express language or fair implication continues, and the [417]*417possession is retained by the vendor, and the value of the property is greatly in excess of the consideration paid, the transaction has usually been held to be a mortgage. Clark v. Henry, supra; Roach v. Cosine, 9 Wend., 227; Murray v. Walker, 31 N. Y., 399; Horn v. Keteltas, 46 N.Y., 605; Carr v. Carr, 52 N. Y., 251; Russell v. Southard, 12 How. (U. S.), 139; Villa v. Rodriguez, 12 Wall., 323; Cornell v. Hall, supra; Cooper v. Brock, 41 Mich., 488; Rice v. Rice, 4 Pick., 349; Eaton v. Green, 22 Pick., 526; Murphy v. Calley, 1 Allen, 107; Gifford v. Ford, 5 Vt., 532; Blodgett v. Blodgett, 48 Vt., 32; Pearson v. Seay, 38 Ala., 643; Wilson v. Giddings, 28 Ohio St., 554; Plato v. Roe, 14 Wis., 453; Wilcox v. Bates, 26 Wis., 465; Ragan v. Simpson, 27 Wis., 355; Musgat v. Pumpelly, 46 Wis., 660; Starks v. Redfield, 52 Wis., 349. In Russell v. Southard, supra, Mr. Justice Cuetis said: “ The deed and memorandum certainly import a sale,” and yet from all the evidence in that case they were held to constitute a mere security, and hence a mortgage. In Wilson v. Giddings, supra, the fact that the grantor continued in possession, controlling, using, and improving the property as his own, and receiving and using the rents and profits thereof as his own, and paying the taxes thereon, were regarded as significant. Once a mortgage, always a mortgage, is the rule generally recognized in the cases. So the want of a personal agreement by the borrower to repay the money is not conclusive that the conveyance was not intended as a mortgage, but merely a circumstance to be considered with the other evidence in the case. This was held in Horn v. Keteltas, supra.
Many other cases might be cited to the same effect. The difficulty of discriminating between mortgages and conditional sales grows out of the fact that either through a misapprehension of the law by one or both of the parties, or a design on the part of one or both to conceal the real purpose of the transaction, it is often found to be mixed and com [418]*418fused, and.hence containing some of the incidents of a mortgage, and also of a conditional sale. As a way out of this difficulty, courts have generally held the transaction to be a mortgage in all doubtful cases, because the ends of justice are the more apt to be attained, and fraud and oppression more likely to be prevented, by such a construction. Russell v. Southard, supra; Edrington v. Harper, supra; Hughes v. Sheaff, supra; Cornell v. Hall, supra; Rich v. Doane, supra. From a careful examination of the authorities cited, it would seem that the precise language employed in the writing is not always conclusive. Courts of equity more readily yield to the real nature of the transaction, as shown by all the evidence and circumstances in the case, including the relative situation, and the precedent, accompanying, and subsequent acts oE the parties.
Observing the rules of law thus indicated by the authorities, we áre next to apply them to the facts of the case before us. It is true that one sixth of the abstract covered by the instrument in question seems to have been, at the time it was purchased by Humphrey, of substantially the same value as the money advanced by the plaintiff to Humphrey; but it is also true that he retained the possession of the abstract, with no objection or claim of ownership on the part of the plaintiff, from the túne he purchased it, in October, 1874, down to about the time of the commencement of this action, in February, 1880. During all that time Humphrey ran, managed, and controlled the half of the abstract so purchased by him as his own, and received and converted to his own use the rents, issues, and profits thereof, without any claim or objection on the part of the plaintiff, notwithstanding his knowledge of the facts. Presumptively, Hu/mplwey, during the time, paid the taxes on half of the abstract and continually increased its value by adding thereto references to the constantly accumulating records of the county. But the plaintiff’s version of the transaction is still more signifi[419]*419cant. He testified that he received the money from his mother, and gave the certificate of deposit to Humphrey in the fore part of February, 1874, for the purpose of purchasing an interest in the abstract business, in the abstract books described in this suit; that he did not think Humphrey then purchased an interest in the abstract books, but he supposed he did afterwards, — • he did not know the time; that in September, 1875, he received from Humphrey the written instrument in question. This is all the information we get on the precise question from the plaintiff.
For whom was the purchase to be made? The plaintiff fails to tell us. He states no fact from which we are authorized to hold that Humphrey received the certificate for the purpose of purchasing one sixth of the abstract for the plaintiff. On the contrary, the fair inference from his testimony is that he let Humphrey have the money to enable him to purchase an interest in the abstract. There is nothing in the plaintiff’s subsequent conduct indicating that he supposed he had an interest in the abstract. It was not purchased by Humphrey for more than six months after he received the money or certificate from the plaintiff. • There is nothing to indicate that during that time Humphrey held the money or certificate as agent or trustee of the plaintiff, but rather as his own.' This being so, the relation of debtor and creditor was created between them in February, 1874. That relation continued, according to the plaintiff’s version of the matter, down to the time Humphrey purchased the half interest in the abstract. He tells us of nothing then occurring to change that relation. It is true, he held the Crane notes for a short time, and drew some interest upon them; but he disclaims any interest in those notes, and denies that they were received in exchange for the certificate. There was nothi ng in the giving up of the Crane notes, therefore, which, according to the plaintiff’s testimony, can be construed into an advancement of a [420]*420part of the purchase price of the abstract at the time of the purchase. On the contrary, he seems to have been entirely ignorant of the purchase at the time it occurred, and at no time, until just before the commencement of this action, assumed to be one of the purchasers.
The relation of debtor and creditor, therefore, continued for nearly a year after such purchase, and to the time of the execution and delivery of the written instrument in question. Is there anything in the wording of that instrument which indicates that that relation then terminated? It, does not say that the $1,000 was received for the purpose of purchasing a one sixth interest in the abstract for the plaintiff, but for the purpose of purchasing of Noyes “ an undivided one half interest in the abstract for $3,000;” which indicates that Hwmphrey was to purchase for himself, and that recital is made, as appears from another recital in the same instrument, nearly a year after Humphrey had purchased such half interest and taken a bill of sale therefor in his own name. At the time the written instrument was given, as we have seen, the relation of debtor and creditor had existed between the parties for more than eighteen months, and there is nothing in that instrument indicating any intention to extinguish such debt or such relation; but, on the contrary, the transfer of the one sixth interest to the plaintiff was expressly coupled with the right inHunyphrey, “ in lieu thereof, to pay to him (the plaintiff) the said sum of $1,000, and the interest thereon at the rate of ten per cent, per annum until paid.” And hence we must, on the principles of the authorities cited, hold that the instrument was taken as security for an existing indebtedness merely. Certainly the evidence of a contrary intention is not so clear and preponderating as to authorize this court to disturb the finding of the circuit court to that effect. This may work a severe hardship to the plaintiff, but this court cannot make contracts for parties, nor act as the guardian of adults who [421]*421are in possession of their mental faculties. Being a chattel mortgage, it was, under the statute, invalid as against any other person than the parties thereto until it was filed with the clerk, February 24, 1877. Sec. 2313, R. S.; sec: 9, ch. 107, R. S. 1858; Maier v. Davis, ante, p. 212, and cases there cited.
This being so, the mortgage given to Gurtis, and filed January 11, 1877, became a first lien upon HvmfhretJs interest in the abstract. The plaintiff’s mortgage being subsequently filed, became a lien thereon subsequent to and subject to the Gurtis mortgage. Did the Gurtis mortgage so filed cease to be such prior lien by reason of the failure to renew it within the two years? The language of the statute is that “ such mortgage shall cease to be valid as against the creditors of the person making the same, or- subsequent purchasers or mortgagees in good faith, after the expiration of two years from the filing of the same,” unless renewed, etc. See. 2315, R.S.; sec. 5, ch. 45, R. S., 1858; ch. 69, Laws of 1872. This section only made the Gurtis mortgage invalid as to subsequent purchasers or mortgagees in good faith, or creditors who should thereafter seize the property. This is abundantly shown by the recent case of Lowe v. Wing, 56 Wis., 31. It is enough to say that the plaintiff is not a subsequent, but a prior, mortgagee, and hence his rights, as against the Gurtis mortgage, -were no better after the filing of his mortgage than before.
For the reasons given the judgment of the circuit court must be affirmed.
By the Gourt.— Judgment affirmed.