The determination of this case depends upon the construction that is to be given to the deed executed by the *168defendant and Iiis wife to the plaintiff, in connection with the writing upon the back thereof, signed by the plaintiff.
The case shows that the said writing- was signed by the plaintiff before the deed was executed and delivered by the defendant, so that their legal effect and operation were simultaneous, and they must be regarded, as they in fact were, one and the same transaction, and constitute in reality, but a single instrument. Regarding it in that light, what is the legal effect of the whole taken together ? The deed is executed by the defendant upon the express stipulation on the part of the plaintiff, that the premises shall be reconveyed on the payment of a stipulated sum of money, at the expiration of a specified time. If the substance of this stipulation had been embraced in the body of the deed in Ihe form of a condition that the deed should be void, or the premises reconveyed on the payment of such sum of money, there could be no question that the instrument would have been a mortgage. If the grantee accepts the deed he takes it subject to such condition. If this stipulation had been inserted in the body of the deed and the deed then signed by both parties, the result would have been the same. It would then only have expressed in terms the legal operation of a strict mortgage, the only difference would be in the mode of revesting the title. In the one case, the payment of the money or discharge of the mortgage would be sufficient, in the other a deed would be necessary.
Instruments of this character are always to be construed according to the intentions of the parties, to be derived from the instrument itself. Now we think it is perfectly apparent that this instrument was executed by -the one, and accepted by the other, subject to the condition written upon the back of it, and that it was intended to be a mortgage to secure the payment of the said sum of eight hundred and fifty-one dollars, and such we think, is i’ts true legal effect, and that it should receive the same construction that would be given to it, if the condition was inserted in the body of the deed.
The conduct of the parties tends to show that such was their understanding. The fact that the grantor remains in possession is always regarded as a strong circumstaces tending to .show that the deed, is a mortgage.
*169But it is said this instrument cannot be regarded as a mortgage, as there was no debt existing on the part of the grantor to be secured by it. There is nothing in this case to show that ■there was no such debt, but on the other hand, the only inference to be drawn from the paper itself, is that there was such a debt. There may be no other written evidence of a debt than that furnished by the deed, but all the authorities agree, that none is .necessary to sustain a mortgage. Kent, in his commentaries, vol. 4, page 145, says that “ the absence of any bond or covenant to pay the money will not make the instrument less effectual as a mortgage.”
That this instrument would, in a court of chancery, be regarded as a mortgage on its face, there can be no doubt, and we think it equally clear that such is its fair legal 'construction. This being the case, bysour statute the grantor is entitled to the possession until the condition is broken ; and as the case shows that the condition had not been broken at the time this suit was commenced, the action cannot be maintained.
Judgment of the county courtis reversed and judgment entered for the defendant.