delivered the opinion of the court,
*137This is an action of assumpsit to recover a portion of the money received by the defendant’s intestate, on a sale of real estate. The right to recover must rest on establishing that he held the land either as a trustee or as a mortgagee.
There is no allegation that McOlane purchased at sheriff’s sale under any arrangement with the plaintiff’s intestate. There was no understanding between them that Payne should have any interest in the land or any share of the proceeds of a subsequent sale. Payne paid no part of the purchase-money. Hence there was no resulting trust; nor was there a trust ex maleficio. McOlane then took and held the title unclogged with any equities in favor of Payne. McOlane had an undoubted title. Payne had no pretended title. Such were the relative positions of those parties when the agreement was entered into between them and Patterson.
It is claimed by the plaintiff that this agreement as found by the jury establishes a valid mortgage in favor of Payne. It is admitted that Patterson did not enter into the agreement with any intent to cheat or defraud him. The plaintiff rests her right on the ground of contract. She contends that inasmuch as Patterson accepted the conveyance from McOlane under the parol agreement proved, it establishes a mortgage, in favor of Payne. A mortgage on what ? It could be on his interest in the land only. We have already shown that he had no interest whatever in the land. He had no estate therein which could be bound by a mortgage, or to which a mortgage could attach. It is claimed, however, that this agreement between the three parties passed to him an interest in the land. We answer, that was a mere parol agreement as to him, and the defendant interposes the Statute of Frauds. It is unlike the case of Houser v. Lamont, 5 P. F. Smith 311, where the only party who could plead the statute waived it, and came into court to establish the parol contract.
It will be observed that .there was no agreement to reconvey to McOlane. It was that if Payne paid the amount of the purchase-money and interest, Patterson should convey to him. It was not conditional between the grantor and grantee. Under no circumstances was it to revert to the grantor. It was not conditional with the only person who had any interest to convey. It was not a mortgage as to McOlane, and could not be as to Payne, to whom no return could be made. A mortgage is a defeasible deed. The defeasance is essential to the creation of every mortgage, whether it be evidenced by writing in or separate from the mortgage, or whether it be established by parol, it must nevertheless exist. The conditional right of restoration in the mortgagor must have been created. Without a valid agreement which binds the grantee to reconvey or yield up to the grantor when the conditions shall have been performed, it lacks the elements essentially necessary to make *138It a mortgage. This is fatal to the plaintiff's case : Pennsylvania Life Insurance Company v. Austin, 6 Wright 257.
The case of Maffitt’s Adm'rs v. Rynd et al., 19 P. F. Smith 380, is not in conflict with this view. The foundation of the right of action in that case rested on a written agreement by which the money was raised for the purchase of the land in question for the use of Lamb. It expressly provided that on the payment of the advances and the other indebtedness from Lamb to them, they would convey to Lamb’s wife. Maffitt and Old took a conveyance of the land with a full knowledge of this agreement and under a promise to carry it out in good fhith.
Hence we conclude the learned judge was clearly correct in entering judgment non obstante veredicto upon the question reserved. Judgment affirmed.