delivered the opinion of the court, October 2d 1882.
The plaintiff’s right to recover is based on a deed absolute on its face. The defendants claim it to be in fact a mortgage only. The sufficiency of the evidence to establish a parol defeasance, is the only question necessary for us to consider.
The rule that a deed absolute on its face made prior to the Act of 8th June 1881, may be shown by parol to be a mortgage is too well settled in this state to need any citation of authorities. The proof necessary to so convert it, must, however, be clear, explicit and unequivocal: Todd v. Campbell, 8 Casey 250; Plumer v. Guthrie, 26 P. F. Smith 441; Insurance Company v. Furniture Company, 39 Legal Intel. 81. The parol defeasance must also bo cotemporaneous with the deed. R o subsequent parol agreement will convert it into a mortgage or affect its validity as a deed : Kelly v. Thompson, 7 Watts 401; Plumer v. Guthrie, supra. It is true it was said in Rhines v. Baird, 5 Wright 256, that the agreement need not be express, but may be inferred from facts and circumstances inconsistent with its being an absolute conveyance. Conceding this to be so, yet the facts and circumstances relied on must not *119be of doubtful import. It is not sufficient that they be merely' consistent with the instrument being a mortgage, they must be clearly inconsistent with its • being an absolute conveyance. Evidence less tliau this, cannot establish a parol defeasance. Titles regular and legal on tlieir face cannot be swept away by parol evidence of doubtful facts or ambiguous inferences.
As such a defence is purely equitable, the judge sits as a chancellor. If the facts are not in dispute, he is to declare their effect and determine whether the defence is well founded. He is to judge both of the equity and of the facts. He must view and weigh the facts and determine whether they be sufficient to submit to a jury. He must not cast the whole burden on tlie jury : Todd v. Campbell, supra; Miller v. Smith, 9 Casey 386 ; De France v. De France, 10 Id. 385; Bennett v. Fulmer, 13 Wright 155; McGinity v. McGinity, 13 P. F. Smith 38; Odenbaugh v. Bradford, 17 Id. 101; Plumer Guthrie, supra. In arriving at the facts the testimony of the parties is to have the same effect as the averments contained in the bill and answer : Odenbaugh v. Bradford, supra.
The evidence of any agreement about the time the deed was executed, affecting it, is too uncertain and indefinite to change its absolute terms. The insufficiency thereof seems to bave been recognised by the learned judge, for he appears to have submitted the case mainly on the alleged declarations of the plaintiff made afterwards. That evidence is vague and contradictory. It is too conflicting in its terms, and too doubtful in its application, to induce a chancellor to overturn the absolute character of the deed. A careful reading of all the evidence has led us to the conclusion that it was insufficient to submit the ease to the jury. This view of the case makes it unnecessary to consider the’other assignments.
Judgment reversed and a venire facias de novo awarded.