Before proceeding to examine the questions arising on the appeal, it is necessary to ascertain what *51questions have already been decided in order that we may know what questions the appellant’s counsel is at liberty to call upon us to consider.
After the trial of the feigned issue the case shows that a motion was made at Special Term for a new trial of said issue. That motion was denied, and on appeal to this court the order denying the motion was affirmed.
The exceptions taken on the trial presented the question whether paroi evidence that the deed from Brown to the defendant was given as security on a loan of money was admissible, that question was discussed at great length by the appellant’s counsel and this court affirmed the order.
That question as well as the regularity of the practice in framing and trying that issue must be treated as res judicata in this court.
But if the question was properly before us the decision of the judge at the circuit must be affirmed.
Whatever the rule of evidence may be in a court of law, in equity it is definitively determined by the court of last resort in several cases that it is competent to prove by paroi that a deed, absolute upon its face, was intended to be a security merely, and it was not necessary to prove, in order to render such evidence admissible, that this deed was given through fraud or mistake. (Hodges v. Tennessee Marine and Fire Ins. Company, 4 Seld., 416; Despard v. Walbridge, 15 N. Y., 374-379; Vandusen v. Worrell, 8 Keyes, 311; Loveridge v. Oyer, cited by Hunt, J.; Sturtevant v. Sturtevant, 20 N. Y., 39; Mulford v. Muller, 1 Keyes, 31; Tibbs v. Morris, 44 Barb., 138.)
The cases on this point will be found collected in 2 Abb. Dig., 677, §§ 935, 936, 937 and 938.
I have said that paroi evidence was admissible, although no fraud or mistake in making the deed was alleged or proved, and I say this, because in nearly all of the cases cited, and in numerous others upon the same point, no fraud or mistake was either alleged or proved, nor was any suggestion made that any such allegation or proof was necessary to justify, the *52court in admitting the paroi evidence. Chancellor Kent, in Story v. Stewart, 4 J. C. R., says it was fraudulent for the grantee, in deed shown to be a mortgage, to insist that it was an absolute conveyance.
It cannot be doubted but that equity would reform a deed which was in terms absolute, but which was intended by the parties to be a mere mortgage, and was put in the form of an absolute conveyance by mutual mistake, or by the fraud of the grantee.
I am not certain whether the appellant’s counsel intends in his points to insist that because the feigned issue was tried in a court of law the rules of evidence applied in those courts should have been applied in determining the admissibility of the paroi evidence.
If he does, I apprehend he is mistaken. It would be grossly unjust, under pretence of trying a question of facts by a jury in an equitable action, to deprive the party of the right of having his rights determined according to the principles of equity which are administered in the court in which his action was brought.
In all cases in which the question whether a deed was intended as security, the feigned issue must be found against the party alleging it to be a mortgage, if it be true, as it is claimed, that at law paroi evidence cannot be received to convert a deed into a mortgage. When the verdict was produced in the court of equity, obtained under such evidence, the court would be bound to disregard it, or do the party insisting that the deed is a mortgage a grievous wrong.
" Where the courts of law and equity were composed • of judges whose duties were confined to the courts for which they were appointed, a motion for a new trial of a feigned issue could only be made to the court by which the trial was ordered. (1 Barb. Ch. Pr., 455, and cases cited.)
' If a new trial is not ordered, the court, as a general rule, accepts the verdict as conclusive on the question of fact, but it is not bound to do so. The trial is to satisfy the conscience of the court as to a fact in regard to which the parties differ, *53and unless the finding of the jury does satisfy its conscience, it may disregard the finding and decide the question of fact for itself. (Adams’ Equity, 376; note [1], 377, and cases cited.)
Rule forty of this court, which provides that neither party in a case on which trial of a feigned issue has been had shall be allowed to question the rulings on the trial at the final hearing or subsequently unless he has moved at Special Term for a new trial, does not preclude the court when the cause is brought on for final hearing from rejecting the verdict and ordering a new trial, on its own motion, or from deciding the question of fact for itself.
If it may not do this, the whole object of framing and trying an issue fails. If the finding is conclusive, the court would never be safe in ordering the trial of such an issue.
I am, therefore, of the opinion it was competent for the defendant at the trial of the issues to call on the court to reject the finding of the jury on the feigned issue and order a new trial, or to require the plaintiff to establish de nova the facts charged in the complaint.
It was equally competent for the court to refuse the application and to accept the verdict as a proper disposition of the question of fact, as was done.
The appellant’s counsel insists that the court should not have accepted the finding on the feigned issue as decisive of the question of fact, because the question submitted to the jury was one of law and not of fact.
Whether a deed which, on its face, conveys the premises covered by it in fee is and was intended to be a mortgage, is a mixed question of fact and law. It is a mortgage only when it was the understanding and agreement of the parties that it should be a mortgage.
The question presented in the feigned issue is, whether the deed given by Brown to defendant was executed and delivered as security for the payment of money.
It would have been more in conformity to the practice if the question submitted had been whether the agreement set *54out in the complaint had been made. But the question submitted is substantially the same; a finding of either in the affirmative establishes the character of the deed.
But, again, the appellant’s counsel was doubtless heard as to the form of the question, and acquiesced in the one adopted. At all events it does not appear that he has at any time objected to it, and he cannot now be heard to allege it was improper in form, unless it is so clearly so as to make it proper for the court to reject the verdict on that ground.
. I have no doubt but that it was understood, when the issue was framed, that it presented the question whether, by the agreement of the parties, the deed was to be a mortgage. It may be thus understood ; and, thus understood, it was sufficient in form and the verdict decisive of the question.
It is altogether too narrow a view of the question to say that the question submitted to the jury does not embrace the facts set up in the ..complaint. If an agreement between Brown and defendant that the latter should advance moneys in addition to what he had already advanced to and for said Brown, and that Brown should execute and deliver a deed of said land as security for the payment thereof, when proved, converts the deed into a mortgage, surely, the finding that the deed was executed and delivered to defendant as security for money loaned must have the same effect on the deed.
We must, at this stage of the cause, deal with substance rather than form. The judgment should be affirmed with costs.
Judgment affirmed.