delivered the opinion of the court, October 5th 1882.
It is well recognized law in Pennsylvania that a deed absolute on its face made prior to the Act of 8th June 1881, may be proved by parol to have been intended as a mortgage: Paige v. Wheeler, 11 Norris 282.
In this case both parties claimed title under one Hiñe — the defendant in'error under deed from him, and the plaintiff in error by piirchase at sheriff’s sale as the property of Hiñe. The latter party claimed, although the deed to the former was absolute on its face, yet in fact it was intended as a mortgage. He therefore offered in evidence a separate defeasance, to be followed by parol evidence that the deed and defeasance formed part and parcel of the same transaction; and as the defeasance was not recorded, the whole constituted an unrecorded mortgage. The court rejected the evidence. This is assigned for error.
It is true the written defeasance offered bears date a few days after the date of the conveyance. If they bore even datethey constitute in law a mortgage; but where the defeasance is of later date, it is a question of fact for the jury to determine, under the parol evidence, whether the conveyance was a mortgage: Reitenbaugh v. Ludwick, 7 Casey 131; Wilson et al. v. Shoenberger’s Executors, Id. 295. While a subsequent independent agreement to reconvey on repayment of the purchase-money will not change an absolute conveyance into a mortgage, yet the fact that the defeasance bears a later date does not preclude a party from showing by parol that it was executed in jmrsuance of an agreement under which the deed was made and delivered, thus forming a part of the same transaction. This was substantially the offer here. The defeasance, on its face, gives some evidence of an intention to consider both instruments of the same date. The offer is, by parol evidence, to connect the two, and prove they constituted one transaction. It is true the offer is not to prove that the defeasance was executed at the time the deed was delivered, nor is it essentially necessary so to prove. Other evidence may sufficiently prove the necessary connection between the two written instruments. A defeasance may be wholly proved by parol. Here the offer was not only to give in evidence the written defeasance, but also to prove by other evidence the identity of the transaction The learned judge erred in rejecting the evidence.
Judgment reversed and a venire facias de novo awarded.